Note: This memo expands on the
1988 Policy Statement of Interior Secretary
Donald Hodel on RS 2477 rights-of-way. It gives the State
Directors (SD's)
of the BLM more specific examples and interpretations of that policy
statement. Like the Hodel memo, it is of value both because it reflects
the long standing position of the BLM in dealing with these rights of
way
and also illustrates what a radical departure from that policy Interior
attempted in issuing its draft regulations in 1994.
EMS TRANSMISSION 8/17/90
INSTRUCTION MEMORANDUM NO. 90-589
EXPIRES 9/30/91
TO: ALL SD'S
FROM: DIRECTOR
SUBJECT: BLM'S RESPONSIBILITIES RELATIVE TO PROPOSED
ACTIVITIES WITHIN RS-2477 RIGHTS-OF-WAY
Recently several questions have been raised from field offices
regarding
the Bureau of Land Management (BLM) authorization and environmental
assessment responsibility for proposed actions within RS-2477
rights-of-way
(R/Ws), especially when such R/Ws are boundaries of wilderness study
areas
(WSAS) or designated wilderness areas.
Section 8 of the Act of July 26, l866, provided:
"The right of way for the construction of highways over
public lands, not
reserved for public uses, is hereby granted."
Although this statute, 43 U.S.C. 932 (RS-2477) was repealed by Title
VII of
the Federal Land Policy and Management Act (FLPMA) of October 21, l976,
many R/Ws for public highways obtained under the statute exist or may
exist
on lands administered by the Department and other Federal agencies,
including the BLM.
DEPARTMENTAL POLICY OF RS-2477
It should be emphasized that the Secretary's policy (issued
12/7/88)
provides the necessary guidance and direction in regard to most issues
relative to RS-2477 R/Ws (see B.L.M. Manual 2801, Appendix 3). To
briefly
reiterate the policy, please remember that under the grant offered by
RS-2477 and validly accepted, the interests of the Department are that
of
owner of the servient estate and adjacent lands/resources. In this
context, the Department has no management control under RS-2477 over
proper
uses of the highway and highway R/W unless we can demonstrate
unnecessary
degradation of the servient estate (BLM Manual 2801.48 B).
Reasonable activities within the highway R/W are within the jurisdiction of the holder. The holder of the R/W has no requirement to inform the BLM of its activities on or within the R/W. As such, the Department has no authority under RS-2477 to review and/or approve such reasonable activities. The project proposal may, however, be subject to review and approval by an appropriate official, depending upon the applicability of other Federal, State or local laws to the proposed project.
For example, where a county government holds a valid RS-2477 R/W for
a
public highway and wants to maintain or improve the road from its
current
primitive condition to a paved, two-lane highway, no additional
authorization is required from BLM as long as the proposed improvements
are
restricted to the width of the existing R/W.
State law which specifically addresses highway widths under RS-2477
shall
be used to determine the width of the R/W. Where State law is silent
relative to the width issue or otherwise does not apply, the area
required
for the road uses existing at the time of acceptance or repeal of
RS-2477
shall determine the extent of the RS-2477 R/W width.
When brought to its attention, the BLM should review proposals only
in
terms of the rights granted under RS-2477 and whether the proposal can
be
implemented within the scope of the valid exiting rights. Thus, where
the
width of the RS-2477 R/W can fully accommodate a proposed road
improvement
project, no additional authorization is needed from BLM.
If additional area or width is needed for the proposed action, it
should be
evaluated according to the regulations in 43 CFR 2800 and BLM Manual
2801. Likewise, if any of the existing roadway and associated features
(borrow
ditches, bridges, culverts, fences, etc.) exceed the R/W width as
provided
for under state statute, that area is in trespass and needs to be
resolved
in accordance with BLM Manual 9232. New ancillary uses or facilities
(electric transmission lines, communication lines, etc.) proposed
within a
RS-2477 R/W area are to be authorized as separate R/Ws under 43 CFR
2800.
COMPLIANCE WITH RS-2477
Since the holder has no requirement to advise the BLM of proposed
changes
in the use, operation or maintenance of the public highway, the BLM has
nothing to review in the formal sense. As with all R/Ws, BLM has a
compliance responsibility. In RS-2477 cases this compliance is to
ascertain that the holder has not exceeded the uses or use area
obtained
under RS-2477 or has unnecessarily impacted the servient estate or
adjacent
public lands.
Should compliance checks find that the holder has exceeded the uses
or the
area granted under RS-2477, such would constitute a trespass and
appropriate action to terminate or resolve the trespass should be
taken. If the finding is degradation of the servient estate, the proper
course of
action is negotiation with the holder to correct and, if that fails, to
seek redress in U.S. District Court.
COMPLIANCE WITH OTHER LAWS, INCLUDING THE NATIONAL
ENVIRONMENTAL POLICY ACT
Appropriate actions by the holder within the scope of RS-2477 are
not
matter for approval by BLM under those provisions. Therefore, the BLM
is
not required to review any such proposed actions, including
documentation
pursuant to the National Environment Policy Act (NEPA).
SECTION 60 (c) OF THE FEDERAL LAND POLICY AND MANAGEMENT ACT
Recent decisions by the Interior Board of Land Appeals (IBLA)
and Federal
courts have identified the obligations of the Secretary (BLM) under
Section
603 (c) of FLPMA. While these decisions relate to situations involving
RS-2477 R/Ws, the principle applies to any action, on public or other
lands,
that may impair the suitability of WSAs for preservation as wilderness.
For example, the SIERRA CLUB ET AL. (111 IBLA 122, decided 9/29/89),
IBLA
affirmed BLM's finding that a RS-2477 R/W exists for the entire length
of
the Burr Trail (Boulder to Bullfrog Road) in southeastern Utah. In
addition, because Burr Trail passes between and bounds two WSAs and
abut a
third WSA, IBLA ruled that BLM has the obligation under Section 603 (c)
of
FLPMA to manage the public land so as to avoid unnecessary or undue
degradation to WSAs which would require preparation of an environmental
impact statement. The BLM's interim management policy for WSAs
(H-8550-1)
is also consistent with IBLA's interpretation of BLMs responsibilities
to
manage such lands so as to prevent unnecessary or undue degradation.
The IBLA also ruled that "an EA of a proposed road improvement
project will
be set aside and remanded where the scope of the project is segmented
and
the assessment fails to consider the impact of connected actions which
are
interdependent parts of a larger action and depend on the larger action
for
their justification." (111 IBLA 123)
OTHER
Other authorities, such as Section 302 (b) of FLPMA, may also
apply to
activities conducted on public lands or other lands adjacent to public
lands. Although not specifically referenced in the above IBLA decision,
BLM's obligation to avoid unnecessary and undue degradation extends to
all
public land (SEC. 302 (b) of FLPMA) and not just to WSAs. Therefore,
even
in those actions which appear to require no further authorization from
BLM
such as the above examples involving RS-2477 R/Ws, the BLM still has
the
obligation to manage all the public lands so as to avoid unnecessary
and
undue degradation to the servient estate and/or adjacent land and
resources. This determination can be incorporated within a NEPA
document
in accordance with BLM manual H-1791 if the proposed action warrants
the
preparation of such document. In those situations not requiring a NEPA
analysis (see RS-2477 above), a separate determination regarding
unnecessary and undue degradation can be made which is independent of
any
NEPA document. Compliance checks may be necessary to confirm the
on-the-ground activities and associated impacts. In situations where a
land use
has been previously authorized but not fully developed or implemented
on-the-ground (as can happen with a RS-2477 R/W), and where BLM may now
have
concerns that a resource value(s), i.e., endangered species, cultural
values, etc., may be impacted by the authorized use, the authorized
officer
can negotiate with the holder to avoid or lessen the conflict. However,
such negotiations are independent from the approval process, and are
properly funded by the benefitting activity, and not the lands program
in
the instance of an RS-2477 R/W.
When a proposed action, which does not require approval from BLM, is
anticipated to have unnecessary and undue degradation on public land,
and
the proponent is unwilling to mitigate or alter the proposal to avoid
such
degradation, BLM's only recourse is to see injunctive relief in Federal
court.
MANAGEMENT CONSIDERATIONS - WSA/WILDERNESS BOUNDARIES AND
RS-2477 R/W
GRANTS
During the WSA inventory process, some WSA boundaries were
established
along the edge of the physically disturbed and utilized area of the
roadway. As previously discussed, the actual width of the road R/W may
extend beyond the disturbed area of the existing road. When such
overlaps
occur, the WSA/Wilderness designation is subject to the terms and
conditions of the pre-existing R/W grant. Proposed actions consistent
with
a public highway under RS-2477 are not subject to the Interim
Management
Policy (more specifically the nonimpairment standard) if they are
contained
within the recognized width of the R/W. Thus, when it is determined
that
the rights conveyed can be enjoyed only through activities that will
impair
wilderness suitability, the activities will only be regulated to
prevent
unnecessary or undue degradation.
The standards for boundary setbacks along exiting roads in
designated
wilderness area are identified in BLM Manual H-8560-1.11.C5. The
setback
standard for jeep roads, low standard logging roads, dirt roads used
for
R/W maintenance, etc., is 30 feet from the centerline. However the
width
of some road R/Ws established under RS 2477 (Arizona-66'; Wyoming-50 to
100') will exceed the 30 feed from the centerline standard just
referenced. When such overlaps are identified, as adjustment of the WSA
or wilderness
boundary to eliminate the encroachment of such boundaries with the
RS-2477
R/W area should be made and properly documented. The BLM Manual
H-8560-1.II.C5 & 6 will be revised to recognize such possibilities.
RS-2477 ADMINISTRATIVE DETERMINATIONS WITHIN THE BOUNDARIES
OF WSAs
Acknowledgment of the existence or absence of a RS-2477 R/W is an
administrative action by BLM when such status is a factor in land use
decisions. Administrative determinations (acknowledgment) are not
subject
to appeal to IBLA, because an acknowledgment is not a Bureau decision
and
does not equal acceptance. Acceptance of the grant occurred when a
public
highway was constructed on unreserved public lands, irregardless of
whether
BLM has acknowledged the action. (BLM Manual 2801.4882).
Some States have established policy whereas BLM will not
administratively
recognize the presence of RS-2477 R/Ws within the boundaries of WSAs.
While such a policy may provide some consistency with the intent of the
Bureau's interim management policy for WSAs, it fails to recognize that
such a grant may in fact exist within a WSA. For example, certain
"ways"
within a WSA may actually meet the criteria for a RS-2477 R/W. The
BLM's
refusal to acknowledge the grant, solely because of its presence within
a
WSA, does not diminish the existence of a R/W grant for a road or trail
which otherwise meets the criteria for a RS-2477 public highway.
Therefore, Bureau policy must provide the authorized officer, on a case
by
case basis and/or in response to public requests, to make
administrative
determinations as to the status of R/Ws across public lands (including
WSAs) when the presence or absence of a RS-2477 R/W is a factor in land
use
decisions.
Reasonable activities within a RS-2477 R/W are within the
jurisdiction of
the holder. The holder of the R/W has no requirement to inform the BLM
of
its activities on or within the R/W. When brought to its attention, the
BLM should review proposals only in terms of the rights granted under
RS-2477 and whether the proposal can be implemented within the scope of
the
valid existing rights. Appropriate actions by the holder within the
scope
of RS-2477 are not a matter for review or approval by BLM, including
documentation pursuant to NEPA.
As with all R/Ws, BLM has a compliance responsibility to ascertain
that the
holder has not exceeded the uses or use area obtained under RS-2477 or
has
unnecessarily impacted the servient estate or adjacent public lands.
Should compliance checks find that the holder has exceeded the uses of
the
area granted under RS-2477, such would constitute a trespass and
appropriate action be taken. The BLM's obligation to avoid unnecessary
and
undue degradation extends to all public land and not just to WSAs. If
there is a finding of undue or unnecessary degradation, the proper
course
of action is negotiation with the holder to correct the situation and,
if
that fails, to seek injunctive relief.
Where WSA (or wilderness) boundaries overlap with a RS-2477 R/W, the
WSA/wilderness designation is subject to the terms and conditions of
the
pre-existing R/W grant. Wilderness boundary setbacks should be
established
to avoid overlapping conflicts with pre-existing grants such as RS-2477
R/Ws. Bureau policy must provide for the authorized officer to make
administrative determinations as to the status of R/Ws across public
lands
(including WASs) when the presence or absence of a RS-2477 R/W is a
factor
in land use decisions.
Finally, in situations where BLM may have concerns that some
resource
value(s), i.e., endangered species, cultural values, etc/.may be
impacted
by an activity previously authorized or granted (such as a RS-2477
R/W),
the authorized officer can negotiate with the holder to avoid or lessen
the
conflict. Such negotiations are independent from the approval process,
and
are properly funded by the benefitting activity, and not the lands
program
in the instance of a RS-2477 R/W.
Questions or comments on the content of this instruction memorandum
should
be addressed to the Division of Lands and Realty (WO 323), mail stop
MIB,
Rm. 3643, FTS 268-5441 with duplicate copy to the Division of
Recreation,
Cultural and Wilderness Resources (W 342), mail stop MB, Rm. 3360, FTS
268-6064.
Signed
Michael J. Penfold
Assistant Director for Land and Renewable Resources
Authenticated
Georgette A. Fogle
Directives (W0 855)
WO855 for UT950 12:31 MDT 17-Aug-90 Message 745-2443 1/213/*priority*
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