INTERIM DEPARTMENTAL POLICY ON
RS 2477 ISSUED JANUARY 22, 1997
On January 22, 1997, Secretary of the Interior Bruce Babbitt "revoked" the Department of Interior's prior policy regarding R.S. 2477 rights-of-way, which form the bulk of the rural transportation network in the western public lands states. The revoked policy (the "Hodel Policy"), set forth by Secretary Donald Hodel in December of 1988, was an attempt to reflect long-established law regarding these rights-of-way, which are typically owned and managed by state and local governmental entities. Because of its reasonable approximation to the law, the Hodel Policy encountered little opposition.
By contrast, the Babbitt memorandum attempts to set policy which is inconsistent with established law. However, the Babbitt memo cannot stand up to scrutiny, because the Secretary of Interior is not free to substitute his judgement for that of Congress by ignoring its statutes, nor can he properly set policy which contradicts established legal doctrines. The Babbitt memo is also insupportable because it attempts to set policy which is in violation of the current published regulations of the Department of Interior, which explicitly provide that if administration by the Department would diminish or reduce any rights conferred by the R.S. 2477 grant, the provisions of the grant apply. 43 C.F.R. Section 2801.4. But the Babbitt memo sets forth an approach which is clearly designed to diminish or do away with rights conferred under R.S. 2477.
The Babbitt memo must be considered in light of the actions of the Department of the Interior under this administration, which have been focused at undercutting the ability of states and counties to utilize and manage their transportation infrastructure, contrary to more than one-hundred years of Interior policy and court rulings. Interior has battled to revoke these rights-of-way in Congress, in the courts, and by way of attempted promulgation of departmental regulations. Due to substantial public interest in protecting these vital transportation links and in honoring established legal rights, those efforts have largely been unsuccessful. As the Babbitt memo states, Congress has prohibited Interior from giving effect to its proposed regulations regarding R.S. 2477 rights-of-way. While the memo asserts that it is not a rulemaking, in practical effect, it provides guidance to the Department which would implement the fundamental purposes of the proposed regulations and thereby constitutes a new effort to find a way to undercut established law by administrative fiat.
Some of the flaws in the position adopted in the Babbitt memo (also reflected in the Department's proposed rulemaking) are addressed briefly below.
No approval by the federal government has ever been required to exercise the rights granted under R.S. 2477. In fact, Interior regulations in place over the last half century stated, "No application should be filed under this act, as no action on the part of the Federal Government is necessary." Once a right-of-way was established, it became a property right of the holder. The treatment of these vested property rights as "claims" has no legal merit.
No federal stature has granted the department of Interior the authority to regulate, adjudicate or otherwise interfere with the proper exercise of these rights. However, implicit in the Babbitt memo, and explicit in the Department's actions in Utah, is the threat that any exercise of the rights without prior judicial or Departmental approval will be met with harsh opposition by the Department, including the filing of burdensome and costly lawsuits.
The "approval" scheme reflected in de facto Departmental policy, now stated in the Babbitt memo, and as currently being carried out in Utah, is one of the most insidious aspects of the Interior's attack. Justice Department attorneys, acting on behalf of the Department, have recently asserted in court that holders of R.S. 2477 rights-of-way can do nothing on these rights-of-way without prior authorization from the federal government. But, as the Babbitt memo declares, Department personnel have been instructed to offer no recognition of any R.S. 2477 right-of-way, not matter how clearly valid, unless the right-of-way holder gives evidence of a "demonstrated, compelling, and immediate need." Thus, Babbitt is creating (and has been implementing in Utah) a scenario where Department personnel say, in effect: "You can't exercise your right unless we acknowledge that it's valid (or you go to court to prove it), and we are prohibited from taking action to acknowledge its validity. Therefore, if you exercise your right, the United States may sue you."
Obviously, the Department is picking and choosing which roads to sue on, targeting rural counties in Utah which have been unwilling to submit to these illegal policies.
The memorandum states that the agency will determine whether a right-of-way meets criteria concerning "withdrawals and reservation," "construction," and "highway." Given Interior's stated hostility toward existing law defining those terms, it should be expected that the criteria will be construed according to newly-created definitions reflecting in the proposed regulations. Watch for Interior to decree a narrow definition of "construction" inconsistent with clear federal case law. Watch for Interior to attempt to invalidate many R.S. 2477 rights-of-way through its new definitions of the term "highway," also inconsistent with federal court rulings.
Watch for Interior to disregard the thousands of legal interpretations concerning this grant offered by state courts, many of which have been relied upon by the federal courts. The memorandum asserts that state law will be applied only "to the extent that it is consistent with federal law." The problem with this statement is that, because federal law has adopted state law as the rule of decision for R.S. 2477, no federal law exists--for now. Therefore, for the Department to determine whether state law is "consistent with federal law" it must first make up the federal law.
The Babbitt memo sets for an illegal policy, which will be carried by Departmental employees to state and local governments across the West as the only way to deal with R.S. 2477 rights-of-way. To the extent that these actions are successful in confusing and intimidating right-of-way holders, the Department will be successful in its ongoing attempt to defeat R.S. 2477 rights -of-way across the West.
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