NOTE: These comments were principally drafted by Garfield, Utah, County Engineer Brian Bremner. The Burr Trail Road, the most litigated 2477 right-of-way in recent times, is located in Garfield County. In addition to his work in support of the county's position in this litigation, Mr. Bremner has extensive experience in documenting 2477 rights-of-way for other western counties.

GENERAL COMMENTS

1. The draft report to Congress RS-2477, The History and Management of RS-2477 Right-of-Way Claims on Federal and Other Lands (hereinafter referred to as "The Report") bases much of its information on a document referred to as the CRS report. Many aspects of the CRS Report are based on personal opinions, and are not supported by existing case law. In addition, as least 20 members of Congress are currently attempting to have the CRS Report withdrawn from the record regarding this matter, due to its one-sided tone and invalid information. The report drafted by the B.L.M. should be a stand-alone document based on existing laws, statutes, and court opinions, and not based on a treatise that is considered by many to be incorrect.

2. The Report repeatedly refers to negative impacts associated with road construction, while minimizing any positive effects associated with increased access. Without the current RS-2477 road system in the Western United States, many of the public lands would be totally inaccessible and the multiple use concept would be ineffective and void. Equal effort should be given by authors of Report to identify positive aspects, instead of focusing on negative issues.

3. The Report fails to indicate that current RS-2477 activities throughout the various states are influenced by Federal Land Managers. More than any other single impact, the policy of existing state offices has shaped and formed the trends in RS-2477 actions. This is particularly true in the case of Utah where state policy requires an inventory of all RS-2477 roads prior to resource management plans (RMP's) currently being conducted in the rural areas of the state. A significant portion of the assertive rights-of-way have been associated with requests from the B.L.M. to submit inventories of RS-2477 claims. Authors of The Report failed to mention their involvement and encouragement in assertions made by Utah counties. This report must recognize that the existing state policies, more than any other factor, have influenced the progression of RS-2477 rights in individual states.

4. The Report continually associates acknowledgement and recognition of existing rights-of-way with road construction. This is incorrect, and a separation between acknowledgement of existing rights of way and on the ground impacts must be maintained. Acknowledgement and recognition of valid rights-of-way will not significantly alter development practices and construction activities for right holders. Economic constraints, transportation plans, and needs far out weigh the influence of RS-2477 recognition. Recognition and acceptance of the right-of-way will not significantly alter the nature of the roads, nor will construction practices, improvement projects, or current plans be significantly altered by mere recognition of a valid right-of-way. The Report fails to recognize the separation between right-of-way recognition and construction.

5. The Report is replete with over-generalizations that are not consistent with actual data, and misrepresent the true nature of the RS-2477 situation. In instances where costs and other impacts are estimated, they are exaggerated and do not accurately reflect current RS-2477 policies. These statements should be rewritten to provide specific information that can be supported with actual data, or should be deleted from The Report. The Report repeatedly indicates that recognition of the rights-of-way may alter management practices, particularly in regards to wilderness areas. This incorrect. Extensive studies by Representative Orton of Utah indicate recognition of RS-2477 claims within wilderness areas in Utah will result in no significant alteration of the B.L.M. recommendation for proposed wilderness legislation. References to impacts on wilderness areas by RS-2477 claims misrepresent actual data regarding the matter and are misleading.

1. Page 2, State Differences, Second Paragraph

This paragraph is replete with implications regarding potential controversies associated with a large number of asserted claims. This is particularly true in Utah's case where the B.L.M. has required its resource area staff to develop an inventory of RS-2477 roads prior to the RMP process. Of the 3,900 roads listed in this paragraph, a majority have been developed in accordance with B.L.M. policy and at B.L.M. request. To indicate that this may be an indication of potential controversy is misleading and fails to recognize the cooperative effort of the local counties in fulfilling B.L.M.'s request.

It should be noted, many of the assertions for the Henry Mountain Resource Area have been ready for acknowledgement for more than one year, and the B.L.M. has intentionally postponed recognizing the claims. The state policy requiring the inventory of RS-2477 roads was originally instituted in February of 1991 and was modified in July of that same year. A copy of the revised version has been included as Appendix 2, Exhibit N of the Report. Almost all of the claims in Utah have been as a direct result or in anticipation of the referenced policy and evidence the cooperation between counties and the B.L.M.

2. Page 3, RS-2477 in Utah, second Paragraph

The RS-2477 rights of way asserted by counties and described in this paragraph were a result of the state director's policy requiring an inventory of RS-2477 roads. In addition, this paragraph incorrectly states "many of these claims, if deemed valid, ...could effect B.L.M. W.S.A. 's" This is inconsistent with Representative Orton's review and study of wilderness designations in Utah. His proposed legislation takes into account existing assertions and claims for valid RS-2477 rights-of-way, and indicates that little if any change in the B.L.M. proposal would occur. Additionally, citizens's requests for additional wilderness designations are outside of the scope of this report. There are similar requests for no wilderness areas in Utah. If one side of an issue is to be address in this report, the other side should abe given equal value.

The last sentence of this paragraph is also misleading. If primitive routes are defined as RS-2477 rights-of-way, little, if any maintenance construction practices will change. The routes are in a primitive nature because their improvement is not justified and because funds are not available to improve them. The authors were especially adept at changing rights-of-way in this sentence to highways. There is little if any chance for small rural counties with limited road budgets to improve primitive trails, ways, and roads to major highways as is implied by the last sentence of this paragraph.

3. Page 4, Congress Debates the Issue and Directs This Report, Paragraph One

The first sentence of this paragraph indicates that "the growing number of road assertions in Utah and the potential for additional assertions in other states caused this controversy to spread to Congress." This is inaccurate and extremely misleading. The first significant number of road assertions as indicated later in The Report occurred in the Henry Mountain Resource Area at the request of the B.L.M. The assertions were performed cooperatively between the Henry Mountain Resource Area and the affected counties. To indicate that the increased number of road assertions was the cause for Congress taking up the action is inaccurate.

Certain lobbying groups approached Representatives and requested that some action be taken. HR 823, a bill similar to HR 1096, was passed by the House of Representatives in 1990, but was not considered by the Senate. This occurred prior to the assertions requested by the B.L.M... The action by Congress was not a result of the road assertions in Utah, but actually was the result of lobbying efforts by various private groups. The first sentence of this paragraph should be revised to accurately reflect the cause of Congress' bringing up the action and to provide an accurate history of HR 823.

4. Page 6, The Federal Interest

The second sentence of this paragraph describes the claims as "open-ended and inchoated." RS-2477 was repealed in 1976 and has a definite end. Claims are not open ended, particularly in view of the fact that federal land managers have records, aerial photos, maps, survey data, plats, and other information which accurately depict roads, paths, trails, and ways that existed on public lands at the repeal of RS-2477. An inventory performed prior to the enactment of FLPMA and repeal of RS-2477 would have clearly identified rights-of-way existing at that time. Considering available data, federal resources and existing planning processes, almost all of the potential RS-2477 claims could be identified, inventoried, and evaluated. Only a few isolated cases which were missed in the reporting would surface at a later date. To indicate that RS-2477 claims are open ended and inchoated, when in all reality the roads may have been in existence over 100 years, and that the RS-2477 policy was repealed nearly 17 years ago is misleading and does not accurate depict the nature of the situation.

5. Page 11, CRS Report

The CRS Report mentioned in this paragraph is extremely flawed and should not serve as a valid basis for evaluating RS-2477 claims and impacts. Attached to my comments is a legal review regarding the CRS report. The legal analysis indicates that the report is extremely flawed and should not be considered valid. In addition, at least 20 members of Congress are considering actions which will remove the CRS Report from consideration due to its biased and flawed nature.

6. Page 12, CRS Report

As mentioned in other sections of this document, the CRS Report is flawed and should be disregarded. The 1988 policy put forth by the Department of the Interior is consistent with the most relevant court rulings regarding RS-2477. In particular, the policy reflects the law set forth in Sierra Club vs. Hodel, 675 FSupp. 594 (d. Utah 1990); Sierra Club vs.. Lujan, 949 F. 2d 362 (10th Cir. 1991).

7. Page 13, CRS Report, Top of Page

The CRS Report is flawed and biased and should not be considered in this document.

8. Page 13, CRS Report, Bottom of Page

The CRS Report is flawed and biased and should not be considered in this document. In particular, the CRS Report discredits state's rights in determining RS-2477 issues. The Federal Courts have repeatedly deferred to state courts and state statutes, limits, and scope for RS-2477 rights of way. Development of one national policy with one national set of standards to apply to all roads in all situations over various public lands in numerous states in an almost impossible task. The only logical and legally correct method is to refer to state laws to govern the scope and limits of RS-2477 rights of way.

9. Page 19, Sierra Club v. Hodel

The paragraph associated with this court case incorrectly states that the federal land manager determines what is reasonable and necessary. The court greatly limited the federal land manager to review only those aspects which could cause undue and unnecessary damage to the servient estate. This is particularly true in view of Utah Law 27-23-93 which states "the width of rights-of-way for public highways shall be such as the highway authorities of the counties, cities, or towns may determine for such highways under their respective jurisdiction." The reference to federal land managers determining what is reasonable and necessary to those construction practices and methods that are commonly available and used in the industry at the time of construction. The Report also fails to indicate that a case to determine this issue is being heard by the Federal District Court in Utah.

10. Page 19, U.S. v. Emery County, Utah

References to thoughts and actions of Emery County are speculative. The consent decree indicated in The Report was a settlement agreement between two parties and did not create policy. The consent order is limited to Emery County and their relationship with the B.L.M. and does not apply to any other highway jurisdiction or federal agency. Inclusion of this document is not appropriate because it is a private agreement between two parties and does not necessarily represent the interests of the citizens of the United States.

11. Page 24-25 This policy directs agencies to develop supplemental guidance.

This subsection fails to recognize the extensive message issued by the director of the B.L.M. to all state directors regarding B.L.M.'s responsibilities relative to proposed activities associated with RS-2477 rights-of-way. The absence to any reference to the instruction memorandum creates doubts regarding the authors' consideration of all Department of Interior policy and guidelines. At a minimum, the instruction memorandum should be referenced in this section of the report and included in the appendices. RS-2477 policies in individual states have been developed as the need has occurred. The first paragraph on page 25 indicates that the need to deal with RS-2477 issues has influenced how agencies have developed their own internal procedures. In many cases, particularly in Utah, the policy and procedures for RS-2477 roads has influenced how counties and right holders have been required to react. Undoubtedly, the B.L.M. policy requiring RS-2477 inventory and assertions prior to RMPs has influenced the number of assertions to date.

12. Page 25, Agency Status on Development of Internal Procedures to Handle RS-2477 Claims, Park Service Interim Guidance

The Rocky Mountain Region Interim Guidance included as Appendix 2, Exhibit L of The Report was developed without any consultation of effected interests and excluding local governments in the process. In l991, units from the Rocky Mountain Region were contacted and requested to assist counties in inventorying RS-2477 roads within their jurisdiction. The units responded by indicating that they refused to recognize any RS-2477 rights-of-way within their jurisdiction, regardless of the fact the unit was created in 1972 and that roads had existed in the area for nearly 100 years. In addition, the Tenth Circuit Court in Denver has already declared certain roads within the Park Service Unit as RS-2477 roads. These roads identified by the court were also denied by the Park Service. Cursory review of the Interim Guidance by the Park Service indicates that it is well beyond the legal limits established by the courts, and is subject to litigation. This situation is further compounded when the Glen Canyon National Recreation Area attempted to deny RS-2477 status for a road that was constructed prior to 1878 and had been in existence more than 100 years prior to development of the National Recreation Area. It is believed by some that the Interim Guidance is an inappropriate effort by the Park Service to discredit valid RS-2477 rights-of- way.

13. Page 25, Agency status on Development of Internal Procedures to Handle RS-2477 Claims

The Gila National Forest has developed policies regarding RS-2477 designation. Authors of this report were afforded an opportunity to include it in this section. Considering the impact of RS-2477 roads on Forest System lands and the cooperative nature the policy fosters between right holders, federal land managers, it should be included in this section of the report.

14. Page 28, Letter of Acknowledgement, Second Paragraph

This paragraph indicates that a federal agency may determine the scope of the right-of-way. This is inconsistent with Utah Law 27-12-93, which states, "the width of rights-of-way for public highways shall be such as the highway authorities of the state, counties, cities, or towns may be determine for such highways under their respective jurisdiction." This statement is also inconsistent with mandates from the court and B.L.M. guidance issued by the Director August 15, 1990.

15. Page 30, Pending Claims

The paragraph preceding the chart fails to indicate that almost all of the claims in Utah were a result of B.L.M. policy requiring an inventory of RS-2477 roads prior to the RMP process. A majority of the roads were asserted in counties that are currently in the RMP process and were developed in cooperation with local resource area managers. Failure to recognize the impact of the B.L.M. RS-2477 policy misrepresents facts and ignores benefits that can be provided when local government and federal land managers work cooperatively in identifying existing on-the-ground resources. It should also be noted that many of the roads listed under the pending claims in Utah have been ready for determination for more than one year prior to the moratorium on acknowledgment. For some reason, federal land managers have been reluctant to acknowledge valid and existing claims, in spite of documentation demonstrating their validity.

16. Page 30, Chart

The chart is inaccurate. A Memorandum of Understanding between Utah B.L.M. and local governments identify more than 200 RS-2477 acknowledgements. One 1980 agreement designates 166 RS-2477 roads in one Utah County. An Idaho County, in cooperation with local interests, B.L.M., and Forest Service has asserted and acknowledged 64 roads on public lands using RS-2477 authority.

17. Page 33, Chart

The chart incorrectly indicates that no formal acceptance is available in Utah. Utah State Law 27-12-26 requires a plat of roads on public lands to be kept by the clerk or recorder of every county. These are considered formally accepted and adopted roads. In addition, there are numerous other methods for formally accepting roads including condemnation, purchase, trades, assignments, right-of-way grants, and others,. The chart should be altered to reflect formal acceptance of roads in Utah. It is also notable the authors have omitted the state statute requiring platting of roads across public lands from the exhibits listed in the paragraph below the chart. This is paricularly interesting when the authors have implied a thorough search of state statutes and included statutes in the same location as the platting requirement.

18. Page 33, Last Paragraph

This paragraph lists factors which affect the potential for future claims, but fails to list the federal land manager policy as an important aspect. In view of the pending claims in Utah, which have resulted from B.L.M.'s policy to require an RS-2477 inventory, the federal land manager's policies could be included as the most significant factor in potential claims.

19. Page 34, The Henry Mountains - A Case Study, An Inventory Needed, Paragraph 5

This paragraph incorrectly states many of the facts associated with the inventory for RS-2477 highways in the Henry Mountain Resource Area. Much of the work was conducted in the summer of l990 in cooperation with Garfield County, Wayne County, and the Henry Mountain Resource Area Staff. Formal maps were submitted as early as August 1990 and did not include the Glen Canyon National Recreation Area or Capitol Reef National Park because the Resource Area had no jurisdiction within those recreational units. The paragraph fails to indicate the number of roads submitted by Wayne County. The paragraph also fails to state that the counties are extremely large (Garfield County is nearly the size of Connecticut) and that they contain a significant amount of federal lands (Garfield County is more than 90% federal land).

20. Page 34, The Henry Mountains - A Case Study, What Has Influenced the Development of Access

In this paragraph the authors vacillate regarding underlying RS-2477 rights-of-way which "may" have been created in public domain. Recent court rulings have indicated that RS-2477 roads exist in the Henry Mountain Resource Area. There is no reason for the authors to question the court's rulings; they can emphatically indicate that the public domain does have underlying RS-2477 rights of way.

21. Page 35 Utah law has few standards of criteria for highways.

This paragraph is somewhat misleading and does not accurately represent Utah road law. Utah law is very specific regarding scope of rights-of-way, and provides broad authority to the highway jurisdiction to govern such rights-of-way. In addition, Utah has numerous procedures for formally accepting rights-of-way including platting requirements mentioned earlier. It is also interesting that the authors have failed to mention the influence of the B.L.M. policy on assertions of rights-of-way. One may assume they have not included it in this section because it relates to Utah law. However, they have provided an editorial comments regarding Garfield and Wayne Counties' interest in establishing what they deem to be valid RS-2477 highway rights. Editorial comments such as the last sentence of this paragraph and numerous others provided in the document should be kept to the authors and not presented as fact.

22. Page 35, Many Types of Road Claims

This paragraph inaccurately depicts the state road system and classifications in Utah. Class D roads are not the most primitive classifications within the state system. Class D roads are roads which are considered to be of county significance, however, are not to be a standard that can be maintained with existing Class B funds. They are maintained periodically. However, some are only maintained at expanded intervals. A separate system of roads which is included in the platting requirements exists within the counties and falls outside of the Class D system. This unnamed system is generally the most primitive class of roads. It should also be noted that many of the Class D roads are just slightly below Class B standards, and may be upgraded with inventory reviews provided by the Utah Department of Transportation.

23. Page 35, Mostly on B.L.M. Land, A Few Involve the Park Service

This paragraph inaccurately depicts the total right-of-way picture within Garfield County, however, it does accurately depict those roads cooperatively developed with the B.L.M. for assertion. It should be noted that numerous RS-2477 roads exist within Park Service units. However, as a result of B.L.M.. policy requiring an inventory of the roads prior to RMP development, the roads within B.L.M. administered lands have been inventoried first. The National Park Service has also resisted efforts to acknowledge RS-2477 road status to roads that were built in the late 1800's and to state that no county roads exist within Park Service units.

This paragraph also fails to recognize the numerous state sections which exist within the Henry Mountain Resource Area and access roads which traverse the state lands. The last sentence of this paragraph indicates the authors' bias. They indicate that citizens' groups wilderness proposals are overlain by approximately 200 miles of asserted roads. It be noted that all of the roads asserted were created prior to 1976--long before the citizens' group ever developed the expanded wilderness proposal. The sentence should accurately depict that the wilderness proposal has attempted to blanket the existing rights of way which were created long before wilderness legislation.

24. Page 35, Some within Wilderness Study Areas

This paragraph states Utah B.L.M.'s attitude that is contrary to Department of Interior Policy which indicates roads within WSA's must be recognized. The B.L.M. in Utah has attempted to reclassify roads as ways and thus circumvent the right-of-way process. Representative Orton's proposed Utah legislation calls this to the attention of the Congress and recognizes all such roads and suggests a policy which will permit administrative review and designation of the so-called "ways." It should also be noted that a very significant number of acres is involved wilderness in the Henry Mountain Resource Area. The 16 miles of road is an insignificant amount (less than 120 acres) and would not change any wilderness designations. B.L.M.'s informing Utah Counties that all WSA's have been previously inventoried and found to be roadless is contradicted by a memorandum dated August 15, 1990, from the Director of the Bureau to all state directors. In the memorandum, the Director states, "The B.L.M.'s refusal to acknowledge the grant, solely because of its presence within a WSA, does not diminish the existence of R/W Grant for a public highway. Therefore, Bureau policy must provide for the authorized officer on a case by case basis and/or in response to public request to make administrative determinations as to the status of R/W across public lands (including WSA's) when the presence or absence of an RS-2477 R/W is a factor in land use decisions." Utah B.L.M.'s failure to accept RS-2477 status purely because of location in the WAS is clearly contrary to directive received from national sources. The Director's memorandum should be included in this report to provide an accurate picture of RS-2477 rights within WSA's.

25. Page 36, Map

The map included on page 36 identifies citizens' proposals for wilderness study areas in Utah. These are not currently proposed by federal agencies nor recommended by the B.L.M. There are numerous proposals being discussed which alter wilderness from the B.L.M.'s proposal. If one citizen's group proposal is included in the document, other proposals should also be included. I believe it is appropriate to limit the discussion to the B.L.M. recommended proposal.

26. Page 38, Implicit Authority, Paragraph 2

It should be noted that most of the access to public lands in the Western United States described in this paragraph are RS-2477 roads. They provide the primary access and in rural Utah provide more than 90% of the access to public lands administered by state and federal agencies. In addition, route and conditions "may" be subject to federal stipulations, not "are" subject as the last sentence states.

27. Page 43, Impacts on Management of Federal Lands, Higher Level of Impacts Than With Other Authorities

This paragraph mistakenly associates designation of RS-2477 rights-of-way with construction activities. Currently, Utah counties have less than 56% of the funds necessary to maintain the existing B Road System. This does not include maintenance of the D Road System, improvement of other road systems, and development of new roads and highways. Based on current funding practices, needs of roads and priority listings, rural Utah will not experience any significant change in construction activities due to recognition of RS-2477 rights-of-way.

This paragraph also uses generalizations and hypothesis to indicate what could and could not happen. Unfortunately, the authors have only taken to exercise one view of the situation. Currently, rural counties in Utah are working cooperatively with the B.L.M. and the Forest Service to develop an integrated, intermodal transportation network that accounts for OHV traffic, bike traffic, equestrian trails, foot paths and recreational trails in addition to roads and highways. Recognition of RS-2477 rights-of-way permit guaranteed access to the public while providing a vast array of options for the traveling public. This paragraph and other areas of the report mistakenly assume that by recognizing a right-of-way, construction will occur. This is incorrect, as is evidenced by the lack of construction over the number of years that the rights-of-way have been in existence prior to FLPMA. Had construction occurred simply because of recognition of the right-of-way, all the roads in questions would have ben constructed to a very high standard. However, the truth of the matter is priorities, needs, traffic, and available constructions dollars limit what will be done with RS-2477 rights-of way.

28. Page 44, Ability to Manage According to Agency Mission, Paragraph 1

This paragraph is extremely negative and mistakenly associates right-of-way recognition with actual construction. The paragraph also generalizes impacts that recognitions of will pose without recognizing positive impacts that could come from development of bike trails, hiking paths, equestrian trails, and many enhancement activities currently designated in the Intermodal Surface Transportation Efficiency Act. Positive aspects resulting from RS-2477 recognition would result in federal land managers and local counties cooperatively developing comprehensive land use plans and resource management plans.

29. Page 45, Common Mandate for Protection to be Compromised

The subheading to the left of this paragraph could be changed to "Common Mandate for Protection Could be Assisted "if federal land managers and local governments would work cooperatively in developing integrated programs, management of federal and private lands could be enhanced." The paragraph also mistakenly indicates that the ability of federal land managers to meet requirements of other federal laws would be compromised if they were required to recognize RS-2477 roads. The recognition of RS-2477 road does nothing more than to assign title to a piece of ground. It does not necessarily result in construction, it does not cause any impact on the ground; it only assigns responsibility to the land itself. Local highway agencies are still required to meet other aspects of law, including the Endangered Species Act, Wetlands Acts, and all other aspects of law. To state the recognition of a title will limit land managers' authority to apply federal laws, misrepresents the situation. This paragraph needs to be revised to indicate that the other aspects of the laws listed will still apply in situations where counties actually improve access to public lands. In situations where title is assigned and no construction occurs, land managers' abilities will be unchanged.

30. Page 45, Resource Management Plans Compromised

This paragraph is particularly disturbing in view of the fact the authors of this report were also the authors of the policy for Utah which requires an RS-2477 inventory be completed prior to the RMP process. If federal managers follow their own policy, the RS-2477 roads would be inventoried and the RMP process would take them into account. The authors' misleading statements regarding compromised plans can only be viewed as an effort to void the policy they drafted. In addition, it must be recognized that the courts have established that the resources managed by the federal land manager within an RS-2477 right-of-way, are servient estate rights. The land manager, however, still has the ability to restrict construction activities if it can be demonstrated that undue and unnecessary degradation is occurring. If construction activities are reasonable and necessary, the land manager has little to worry about.

31. Page 45, New Claims Continue to be Filed

This paragraph describes the claims as "inchoate," which is defined as "in an initial or early stage, incipient." These rights-of-way have existed for more than 115 years and have been used to settle and develop the West. To indicate the rights-of-way are inchoate can only be viewed as an effort to mislead the Congress by intellectualism.

32. Page 45, Last Paragraph

This paragraph indicates that assertion of RS-2477 rights has been used to defeat wilderness designations. The rights-of-way were granted by Congress prior to designation of wilderness and if valid should be considered a pre-existing right. Congressman Orton of Utah has done extensive research regarding the Utah bill; and considering the vast number of pending claims in Utah and acreage of potential wilderness, he has determined that the RS-2477 roads existing within wilderness areas will not affect wilderness designations significantly. In fact, there is a strong possibility that there will be no net effect of wilderness in Utah by designation of RS-2477 roads. This paragraph is totally misleading and tends to generalize a situation that has not occurred. If an RS-2477 right-of-way exists in an area and it was mistakenly termed roadless, the prior and existing rights should be upheld occur while still providing for the protection of wilderness values.

33. Page 46, Paragraph 1

This paragraph mistakenly emphasizes generalized statements regarding RS-2477 roads. Many of the roads within National Parks and National Recreation Areas are RS-2477 rights-of way and provide the only access to federal lands. This is particularly the case in Glen Canyon National Recreation Area and Capitol Reef National Park. The roads are utilized to enhance the federal land managers ability and not to detract from it. This paragraph should give equal time to both sides of this issue, rather than blindly supporting any one viewpoint.

34. Page 46, Degree of Impact Depends on Scope of Right-of-Way, Significant Roads Normally Benefit Other Than a Problem, Last Paragraph

The last paragraph of this subsection indicates that there is a much greater potential for adverse impacts if primitive roads are deemed to be valid RS-2477 rights-of-way. Once again, the author is assuming that RS-2477 designation and assigning of title is equivalent to massive construction. This is simply not the case.

35. Page 46, Conversion of Rights from Unimproved Roads to Improved Roads, Paragraph 3

The discussion in this paragraph is not realistic. Currently, counties in Utah only have 56% of the funds needed to maintain the existing Class B Road System. The perception that all jeep trails would be converted to paved two-lane roads is not realistic. Only in situations where impacts (mining, recreational development, or timber production) support such an improved road would one even be considered. Major impacts on adjacent lands resulting from these activities would necessitate some FLPMA documentation. conversion of a jeep trail to a heavy commercial highway is unrealistic. A more realistic example would be acknowledgement of the valid right-of-way and continued status as the road now exists.

36. Page 47, Conversion of Rights from Unimproved Roads to Improved Roads, Ability to Require Mitigation is Unclear

The Courts have been very clear in limiting the management activities to prevent undue and unnecessary degradation. The courts have interpreted this to mean mitigation of cultural resources, endangered plans and animals, wetlands, and other activities provided in different sections of the law.

37. Page 47, Agency Costs

The estimates listed in this section of the report are gross exaggerations of the truth. The 3,800 assertions filed in Utah contained detailed mapping, historical evidence, the numbering, and color coding to identify the exact location of the roads. Documentation prepared by the counties in rural Utah has generally been at a cost of less than $10.00 per road. The estimate presented by the report is 2 orders of magnitude higher than actual costs of the counties who actually performed the work and submitted the documentation in a nearly complete form to the managing agency. The cost of the historical search could be reduced significantly by providing local government with modem capabilities and data necessary to perform the historical search. Based on the Report's figures, the cost of determining the validity of the rights-of-way in the Henry Mountain Resource Area alone would be between $320,000.00 and $1,600,000.00. Almost all of the work in the Henry Mountain Resource Area was performed by one individual in addition to his other duties. Estimates should be based on realistic values identified in the Henry Mountain Resource Area, the Kanab Resource Area, and the Escalante Resource Area. These areas have prepared necessary documentation for acknowledgement of RS-2477 rights-of-way associated with the Utah State policy. Cost figures should be left out of this report unless they can be documented and shown to be realistic.

38. Page 48, First Paragraph

References to the legal costs associated with the Burr Tail litigation are inaccurate. Authors may have included construction delays, change orders and contractor claims in their inaccurate estimate.

39. Page 48, Wilderness, Wilderness Manageability Compromise

The wilderness manageability would not be compromised as described in this paragraph. It appears the authors have taken a one-sided view of valid and existing rights-of-way. The rights-of-way predated wilderness legislation and should have been recognized. In many instances, particularly in Utah, roads have been cherry stemmed and setbacks have been established to provide highway authorities with valid rights while still preserving wilderness values. It is also important to note that a significant improvement of the roads within wilderness study areas triggers NEPA action and requires consultation with the federal land manager. This provides the land manager with every opportunity to request reasonable and necessary activities to mitigate problems and protect wilderness values.

40. Page 48, Wilderness, Wilderness Proposals May be Disqualified

Once again, the author is generalizing the situation in describing things that may happen without accurate supporting data. Representative Orton has done a careful study of roads within wilderness areas in Utah and has determined that although there are numerous roads, paths, and ways which are valid RS-2477 rights-of-way within Utah wilderness designations, their effect on the wilderness proposal is minimal. In fact, it appears that recognition of the rights-of-way and acceptance of setback proposals by Representative Orton would have no effect over B.L.M.'s proposed wilderness. The authors should bring forth data depicting actual impacts associated with recognition of valid rights within wilderness areas.

41. Page 48, Are Wilderness Areas Roadless?

This paragraph places the B.L.M. in conflict with the U.S. Geological Survey and the Bureau's cartographers who mapped many of the RS-2477 rights-of-way in wilderness areas as roads. Previous mapping by federal, state, and local agencies has also designated the rights-of-way as roads. It should be remembered that the right is a right-of-way and a manipulation of semantics does not reduce the title holder's rights. This paragraph also contradicts an instruction memorandum issued August 15, 1990 by the Director of the B.L.M.

42. Page 48, Mechanically Constructed Versus Primitive Roads

This paragraph equates designation of rights-of-way and establishment of rights with actual construction. It is unrealistic to assume that roads and rights-of-way that have remained in a primitive condition will suddenly be altered by mere acknowledgement of a right-of-way that an agency has claimed since the road was originally used. In addition, the authors are very aware of the requirements the courts have established for improvements of roads within wilderness study areas and the undue and unnecessary criteria established in the Burr Trail Road case. Failure to mention these limitations, requirements, and privileges of the title holder cast doubts regarding the accuracy of this report.

43. Page 49, Conflicting Definitions

It should be noted that RS-2477 rights-of-way predate FLPMA and that restriction of those rights may constitute an unconstitutional taking. FLPMA is very clear in recognizing valid and existing rights and if adjustments need to be made, it should be made in the later regulations.

44. Page 49, Constituency Concerns

Because these are constituency concerns and not necessarily the position of the federal government, it should be clearly stated at the onset of this subsection that the Department of the Interior is not expressing an opinion as to the validity of these concerns.

45. Page 51, Next to Last Paragraph

Although many of the roads were not asserted nor recognized by a federal agency, they are valid RS-2477 roads. Documentation was not required. Based on the Henry Mountain Resource Area experience, a significant number of the roads that could be asserted are valid rights-of-way.

46. Page 52, First Paragraph

The author is once again equating recognition of rights-of-way with actual construction. It is very likely that recognition of the right-of-way will not significantly alter construction, maintenance, and access activities of local governments. It should also be noted that many of the impacts described below are related to construction activities and improvement of rights-of-way and are not associated with recognition of RS-2477 rights-of -way.

47. Page 52, General

This subsection does not recognize that failure to acknowledge valid RS-2477 claims could close existing accesses and cause dramatic impacts on land managers as they attempt to control casual use. Recognition of RS-2477 rights-of-way, on the other hand, provides well defined accesses which are generally utilized by the multiple use individuals described on this page.

48. Page 55, Second Paragraph

On the other hand, failure to be able to identify access controlled by a governmental entity for public use will also prohibit loans on private ground and may make acquisition of title insurance difficult. Recently, I have been required to file certified letters indicating that Garfield County controls access to private parcels of ground prior to a bank issuing loans and/or agencies issuing title insurance.

49. Page 55, State Lands, Third Paragraph

In addition, rights-of-way are the logical means for access in the state sections because they are existing routes.

50. Page 58, Impacts to State and Local Governments

The first paragraph of this subsection minimizes local government's concern to preserve existing access and rights-of-way. The existing rights-of-way, whether they be highways, roads, paths, trails, bike paths, equestrian trails, or any other resource, provide significant benefit to the local government. Access was developed as an integrated system. Failure to recognize RS-2477 roads, particularly in counties dominated by large acreages of public lands, greatly hampers planning efforts, multiple use concepts, and infrastructure maintenance. It should also be noted in this subsection that particularly in areas dominated by federal land, the RS-2477 network may constitute a majority of the road network. The Henry Mountain Resource Area is an example of this, where failure to recognize valid RS-2477 roads or reprocessing such roads as Title V rights-of-way would require the redevelopment of greater than 90% of the transportation system across federal lands.

51. Page 66, Chart

Citizen's proposals for wilderness should not be considered unless all proposals from all interested groups and citizens are given equal consideration. The chart misrepresents impacts associated with Alternative 2 in regards to multiple use. Historically, it can be shown that lengthy court battles and adversarial processes do not maintain a status quo, but result in a degradation of the resource over time. Costs associated with the existing process are exaggerated as was indicated earlier in these comments. Currently, approximately 2,000 roads have been processed by the Bureau of Land Management in Utah. The roads were processed by two individuals in addition to their other duties. Total time commitment for processing resource areas is less than six months of FFE time.

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