By Marjorie Haun | Watchdog Arena
Despite a long process involving collaboration between local officials the Bureau of Land Management (BLM) in Western Colorado, the federal land agency is proceeding with the closure of roads that have been traveled for 50 or more years. The road closures comprise a portion of the BLM’s Resource Management Plan (RMP) for Mesa County, of which, 73 percent is controlled by the federal government and its agencies.
In a letter dated Sept. 9, from the BLM to the Board of Commissioners of Mesa County, the decision to close hundreds of miles of historic routes, despite protests from local government and citizens, was detailed. The letter, written on United States Department of the Interior letterhead, stated:
After careful review of your protest letter, and for reasons more fully set forth in the Protest Resolution Report, I conclude that the BLM Colorado State Director and the Grand Junction Field Office Manager followed the applicable laws, regulations, and policies and considered all relevant resource information and public input in developing the Grand Junction [Proposed] RMP. There is no basis for changing the Grand Junction PRMP as a result of your protest. Therefore, your protest is denied in part. All valid protest issues received on the PRMP/FEIS (final Environmental Impact Statement) have been addressed in the Directors Protest Resolution Report.
Mesa County Commissioners’ protests specifically dealt with the travel portion of the RMP, which initially threatened to close off some 2,000 miles of public roads, used by off-roaders, hunters, farmers, ranchers and, during wildfire season, firefighting crews.
With mounting pressure from officials, citizens, and a group calling itself Public Lands Access Association (PLAA), roads proposed for closure were whittled down to around 600 miles. According to Commissioner John Justman, 207 miles of roads will be addressed in the future, but 392 remaining miles of disputed routes will be closed to public access. Although the commissioners plan a further appeal to keep the roads open, it will likely be an uphill battle with an agency wielding great power over federally-managed land.
Albeit, to this point, cooperation with the BLM has been the approach by officials in Mesa County, they may have a strong legal basis for challenging the latest determination from the BLM to proceed with the RMP.
In an interview with Watchdog Arena, Jody Green, a member of Public Lands Access Association and long-time activist working to preserve access into federally-managed lands, said, “It’s ludicrous, what they’re doing. They’re not following state or federal law.” Mr. Green then cited Colorado Revised Statute (CRS) 43.
According to CRS 43-2-201, closures of roads or public highways by any governing body other than “a municipality or county” are illegal. That clause prohibits federal officers from closing any route. According to Colorado law, only the county has the right to do what the BLM has done and is attempting to do in Mesa County.
But federal law may also prohibit the BLM’s road closures as well. Revised Statute (RS) 2477 was devised by the United States Congress in 1866 to govern roads, routes and rights-of-way in western states. RS 2477 placed all decisions regarding roads on public lands within the jurisdictions of counties and states. Although the Federal Land Policy Management Act of 1976 (FLPMA), repealed RS 2477, the language within the new act served to “grandfather” in RS 2477. It currently reads:
Section 509 FLPMA (a) nothing in this title shall have the effect of terminating any right of way or right to use heretofore issued, granted, or permitted. However, with the consent of the holder thereof, the Secretary concerned may cancel such a right of way.”
According to state and federal law, there may be good standing for a legal challenge to the BLM’s plan to close off hundreds of miles of public roads. PLAA President Brandon Siegfried, who also granted an interview to Watchdog Arena, said Utah is one of the few states to mount an RS 2477 challenge against the BLM. In Utah the state will join counties in these legal challenges, and, according to Siegfried, there are currently 12,000 miles of public routes under dispute in that state.
Siegfried and PLAA have been instrumental in working with county sheriffs, local officials, and citizens to reopen roads on public land that were purportedly illegally closed by the BLM. Of the BLM’s willingness to follow state and federal law, Siegfried said, “The BLM is playing by their own rule book, so they will use their arbitrary rules to determine whether or not public roads should be closed.”
Siegfried then expressed doubts about the fairness of the BLM appeals process which, thus far, the Mesa County Commissioners have pursued, saying, “You’re making an appeal based on criteria set by your opposition.” Siegfried also asserted, “The BLM may list some roads which have been closed to motorized vehicles as “open” even though horses or hikers are the only traffic allowed.”
The BLM, not unlike other federal agencies, are directed by the Executive Branch, and Congress has little oversight until something really bad happens. Of the potential for legal action against the BLM, Mesa County Commissioner John Justman said, “We are discussing our options. We need to see where our appeal goes.”
This article was written by a contributor of Watchdog Arena, Franklin Center’s network of writers, bloggers, and citizen journalists.