May 18, 2004
The first test of a controversial Bush Administration rule designed to ease highway construction through wilderness areas, national parks, and other protected federal lands suffered an embarrassing setback last week. The rule opens the door for states to claim that long-abandoned trails and paths are under state -- not federal -- jurisdiction, meaning that states could therefore develop them as highways.
It turns out that a "state" roadway, which Utah seeks to take over under the new Interior Department rule, was built in the 1930s by the federal Civilian Conservation Corps for the U.S. Grazing Services.
Until this revelation, the case had been widely regarded as the perfect test for the new "disclaimer" process, which could in effect block wilderness protection and open millions of federal acres to road development, off-road vehicles, and oil and gas exploration. Last January at a news conference announcing the filing of the state's claim, Utah Governor Olene Walker predicted that the return of the 99-mile-long Weiss Highway would have "national significance." 
Utah's claim has proved to be considerably off the mark. By reading a widely-available history of Juab County, where the Weiss Highway is located, Kristen Brengel of The Wilderness Society http://www.wilderness.org
got the first hint of the road's federal history. Her research even turned up the irony that the highway carries the name of the federal employee who supervised its construction-Henry L. Weiss of the Department of the Interior. With notable understatement, Brengel observed that the state of Utah missed "key evidence".
Whatever the fate of this particular bid, the state of Utah intends to pursue at least 10,000 other claims. Alaska is reportedly pursuing at least 2,000 claims, and other western states will make similar bids to obtain ownership of old right-of-ways, which often don't amount to more than old wagon ruts, cow paths, and stream beds.
This surprising discovery in such a high-profile claim underscores the irresponsibility of the rule change-- a prime example of many administration moves to undermine environmental protection quietly but powerfully through changes in arcane rules and regulations.
In this case, the administration resorted to an 1866 mining law -- known as R.S. 2477-- to circumvent the need to prove the validity of a claim in court or undergo environmental review and public participation. The new rule shifts the decision-making from the courts to the Interior Department's Bureau of Land Management, and eliminates the public's traditional right to challenge whether a valid right-of-way exists. 
Last year more than 80 members of Congress sent a letter to Interior Secretary Gale Norton protesting that the new rule was not only objectionable but "directly contrary to law." Such claims, the letter noted, "are seen by some as the vehicle of choice for those who would bulldoze thousands of miles of new roads across some of the country's most sensitive Federal lands." 
Email Interior Secretary Gale Norton to show that you do not support the erosion of environmental protection and public involvement with changes to arcane rules: Gale_Norton@ios.doi.gov.
 "Road ownership test case hits a bump," The Salt Lake Tribune, May 10, 2004.
 Letter from House Members to Secretary of Interior Norton, Apr.16, 2003.