Lieberman Seeks Transparency on Interior’s Plans for Highways Through Pristine Public Lands

WASHINGTON – Governmental Affairs Committee Ranking Member Joe Lieberman, D-Conn., Wednesday prodded Interior Secretary Gale Norton to share with the public the Department’s behind-the-scenes activities regarding highway construction through millions of acres of federal land, including wilderness, national parkland, wildlife refuges, national monuments and national forests. In a letter dated July 2 , 2003, Lieberman said he feared the Department was exposing these lands to potential development and environmental degradation by manipulating the standards by which claims could be made to the land.

“I am writing to express my serious concern that the Department of the Interior is failing to fulfill its obligations as a steward of the nation’s public lands in apparent violation of the law,” Lieberman wrote. “Despite the potentially profound consequences” of changes the department is making, “little information has been provided to the public about the Department’s activities.” The Senator asked the Secretary a series of questions related to the Department’s activities in this area. At issue is Revised Statute 2477, part of a law enacted in 1866 when the federal government was encouraging pioneers to settle the West. This provision granted a right of way over public lands for highway construction. RS 2477 was repealed in 1976 when Congress established a modern system for public land management designed to generally retain the lands for public use. State or local authorities, companies, and private individuals seeking to create a road across public land must now submit a formal application to the Secretary of the Interior or Agriculture. The new law also requires consideration of the environmental effects of granting the request. The old law, however, remains in effect for rights of way established before 1976. No one knows precisely how many rights of way were established under this law, and so claims on old wagon trails, cattle paths, and even stream beds are still being asserted to this day. And because of the Interior Department’s secrecy, no one knows how many claims are currently pending, who has made the claims, where the claims are located, whether or not they are valid, nor how Interior is disposing of them. “What is at stake today is whether, by manipulating the standards for recognizing rights of way claims made under the 1866 law, the Bush Administration effectively gives broad permission for the development of federal land – even when the claims themselves may be flimsy and the damage to the environment caused by recognition of those claims may be profound,” Lieberman wrote. “If the standards are systematically weakened – as many in the Administration appear to prefer – … the Administration would essentially open the public’s lands to all comers, regardless of the validity of their claims to the land and regardless of the net environmental impact, and by doing so, distort the 1866 grant and undermine the purposes of the new law enacted in 1976.” Lieberman said right of way claims asserted under the old law should be judged in a manner consistent with the letter and spirit of the law so that only legitimate claims will be recognized. This, however, was “a process which the Administration appears unwilling to undertake.” One example of the Department’s manipulation is the use of a separate regulation intended to resolve non-controversial title claims in the consideration of RS 2477 claims. Under this regulation, known as the “disclaimer of interest” rule, the United States may declare it has no legal interest in a piece of property. By converting this regulation into a vehicle for processing RS 2477 claims, Interior is circumventing a 1996 Congressional prohibition against a final rule governing the validity of RS 2477 claims. Use of this regulation also appears to prohibit citizen groups from challenging RS 2477 claims, and for the first time, allows counties and other state-created entities to file claims, whether or not the state agrees with the claim. “My concern is that the disclaimer process may be used to unfairly concede federal title to lands when proper title should be established by the Courts, or Congress,” Lieberman said. The Department further evaded public scrutiny by reaching a “Memorandum of Understanding” with Utah on April 9, 2003, by which Interior agreed to use the “disclaimer of interest” rule to acknowledge RS 2477 claims in Utah. This agreement was reached without the benefit of public scrutiny and, once again, skirts the prohibition against issuing rules pertaining to the recognition of existing claims without Congressional approval. At stake are priceless natural resources, including the Grand Staircase Escalante National Monument. Other states and counties are seeking their own deals with Interior, and there is no indication those negotiations will be subject to public scrutiny either. Lieberman further expressed concern about the Department’s interpretation of terms contained in RS 2477, such as “highway” and “construction.” Draft guidance suggests that the Department interpret the law to greatly expand the universe of claims that may be recognized as RS 2477 rights of way.