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Interior Secretary's Action on ROW Road Claims on Public Lands Sparks Controversy

Outgoing Interior Secretary Gale Norton signed a memorandum last Wednesday that some believe could open the door for states and local governments to assert rights-of-way (ROW) claims to thousands of miles of roads on public lands in the West, a move that environmentalists contend could lead to development of wildlife refuges, public parks and federal lands.

Interior Department officials said that Norton, who will step down this week, was simply responding to a decision addressing the agency's role in resolving disputes over ROW road claims that was handed down by the Tenth Circuit Court of Appeals last year, but environmental critics saw the secretary's action as far more reaching.

"She has swung the door open" for states and counties to assert road claims through public parks and other public lands, said Kirsten Brengel of the Wilderness Society in Washington, DC. This is a "pretty sweeping policy" on Norton's part.

"I think they [energy companies] will benefit from it, but I don't think they were pushing it necessarily," Brengel told NGI. Increased energy development could occur in places such as Moffett County, CO, "where they got an incredible amount of [road] claims across" Bureau of Land Management lands, she said. "They specifically do say they want those claims to come to fruition so that they can further develop oil and gas leases."

Norton's action leaves federal land managers in a "pretty untenable position to have to deal with all the claims that will be made across federal lands," according to Brengel.

States and counties "[have] claimed so may routes and roads and trails in some areas that there would be almost no federal ownership of the land," she said. The state of Utah alone has filed more than 100,000 ROW claims to roads, hiking trails and routes across public lands that it says qualify as public highways, Brengel noted. Approximately 5,000 road claims have been asserted in the Mojave National Preserve in California.

Norton said her action conformed with the Tenth Circuit's ruling and would protect public lands. "The [court's] decision allows the roads to be maintained at the status quo; it does not authorize automatic expansion of roads. Our new guidelines respect the obligation that Interior has to protect federal lands and environmentally sensitive areas, particularly parks, refuges and congressionally designated wilderness areas," the secretary noted.

Norton's order was the latest in a series of Interior actions dealing with an 1860-era law, known as Revised Statute 2477, which granted ROWs for the construction of public roads across federal lands. Congress repealed the law in 1976, but it allowed ROWs existing at the time to remain in effect. This created considerable controversy over the ownership of certain roads on federal lands.

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