October 9, 2012

A Commentary by Steve Klein

Wyoming Liberty Group

Imagine an energy company running a pipeline across your land when empty federal land sat right next door. Since energy companies may exercise the power of eminent domain in Wyoming, this has happened many times over the years and continues to be a threat to landowners, farmers, and ranchers alike. It doesn't have to be this way.


In fact, it's time to drive home a new solution the problem of private property violations because the courts are making things worse. Last week the United States Supreme Court said it will not hear an appeal to a Wyoming lawsuit decided in the Tenth Circuit Court of Appeals nearly one year ago. The Tenth Circuit's decision overturned a Wyoming court ruling that prohibited the enforcement of the so-called "Roadless Rule," and now that reversal will uphold the federal rule over Wyoming.


The rule ads millions of acres of "roadless" area across federal lands and prohibits new road construction while restricting timber harvesting except for stewardship purposes. The case against the rule was largely an administrative challenge to how the Forest Service went about crafting the rule, but the rule itself remains most controversial.

However, there's a silver lining: Wyoming has many rights-of-way over our vast tracts of federal land, but neither the state nor many Wyoming counties have taken the time to document their existence.


During westward expansion in the mid-1800s, the U.S. Congress passed a bill entitled "R.S. 2477," part of the Mining Act.  It allowed for anyone to build "highways"across federal land, and recognized those rights of way.  When Congress passed the Federal Land Policy Management Act in 1976, it repealed R.S. 2477, but recognized any pre-existing right of way.  So long as these rights-of-way over federal land-be it trails, two-tracks, or paved roads-existed before 1976, they are valid.  And they don't just count for travel, because as under state law, rights-of-way may be used for power lines, oil pipelines or the like.


The 10th Circuit recognizes the Roadless Rule, but a few years back it also recognized R.S. 2477 claims for counties in Utah, and these claims are superior to roadless designations under the law.   This isn't a matter of judicially challenging or otherwise defying federal law, because these rights are recognized in the United States Code.  It's simply a matter of giving counties the power to undertake the documenting of these rights-of-way and enabling them to work directly with the federal government to ensure that they are recognized.


Wyoming state law is somewhat of a mess when it comes to roads and rights-of-way.  State law finally recognized R.S. 2477 in a 2010 revision that allows for county commissions to recognize rights-of-way over federal land when they are used to access "a private residence or agricultural operation."  But this is simply not the limit on R.S. 2477.  County commissions should have the power to recognize any identifiable right-of-way over federal land that existed before 1976.  In the process, these county bodies will have to answer to their constituents, preventing the recognition of rights-of-way that have long been abandoned or that would interfere with nearby property interests.


It's a shame that the Roadless Rule is so restrictive and that "conservation" is often defined as never using the land for anything, ever.  It's equally shameful that the first place oil pipelines and other utilities go in Wyoming is over private rather than public land.  But with some changes to state law, Wyoming counties could secure many rights-of-way for productive access, recreation, transportation and even oil pipelines.  This will not entirely push back land management from Washington, D.C., but it's a step in the right direction that would give Wyoming residents a louder voice in land management and enhanced protection for their own property.

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