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Public Lands:
claim of public rights-of-way

Our Position: oppose
Bill Number: HB2289
Sponsor: Jones
Legislative Session: 2009 Legislative Session

HB2289 asserts and claims, on behalf of the state and its political subdivisions, rights-of-way across public lands acquired after the effective date of Revised Statute 2477.   This relates back to an 1866 law known as "Revised Statute 2477" (RS 2477), which stated “the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted,” effectively granting a right-of-way allowing highway construction on federal public lands.  The statute was repealed by Congress in 1976, when Congress enacted the Federal Land Policy and Management Act (FLPMA). 

This bill is likely to just create confusion rather than open up any roads as its proponents would like to do, but it is a bad message, and could slow down efforts to protect our public lands from irresponsible off-road vehicle use and to protect resources by closing certain roads. 

The same bill language from last year was in SB1264 and opposed by the Marine Corps Air Station (MCAS) Yuma.  In an email to legislators, they stated "SB 1264 only adds to the confusion of what is necessary to establish a valid right without providing any real value to the claimants, governments or courts that would be involved."

Status

04/10/09 - It appears to be dead for the session. Yay!

Action Needed

To email your legislators or find their direct phone numbers, click on Legislators.  If you are not sure who your legislators are, please go to Vote Smart  or call the House or Senate information desks.  If you're outside the Phoenix area, you can call your legislators’ offices toll free at 1-800-352-8404.  In the Phoenix area call (602) 926-3559 (Senate) or (602) 926-4221 (House) and ask them to connect you with your legislators.

Contact

Sandy Bahr at (602) 253-8633 or at sandy.bahr@sierraclub.org

Background

HB2289 asserts and claims, on behalf of the state and its political subdivisions, rights-of-way across public lands acquired after the effective date of Revised Statute 2477.   This relates back to an 1866 law known as "Revised Statute 2477" (RS 2477), which stated “the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted,” effectively granting a right-of-way allowing highway construction on federal public lands.  The statute was repealed by Congress in 1976, when Congress enacted the Federal Land Policy and Management Act (FLPMA).  Title V of FLPMA replaces RS 2477 with a new process for permitting rights-of-way for roads and highways.  State and county governments can also obtain new rights-of-way through the Federal Aid Highway Act.  The Bureau of Land Management has conveyed thousands of miles of rights-of-way to states, counties, and local government via these processes.

Congress “grandfathered” existing, established RS 2477 rights-of-way for highways constructed prior to 1976.  The Arizona law that governs these rights-of-way is the law that was in effect at the time the RS 2477 was law – that means prior to1976.   Nothing the legislature does now can change the law as it was in 1976.  Arizona state law when RS 2477 was in effect required that counties affirmatively adopt resolutions incorporating a route into the county route system. This was done to ensure that counties were not saddled with maintenance costs or liability for roads they did not know about.

This bill is likely to just create confusion rather than open up any roads as its proponents would like to do, but it is a bad message, and could slow down efforts to protect our public lands from irresponsible off-road vehicle use and to protect resources by closing certain roads.  Supporters of this bill say it is needed because the Forest Service is closing 80 percent of the roads on the national forests and specifically have referenced the Apache-Sitgreaves National Forest.  That is flat wrong.

The Apache-Sitgreaves National Forest is currently working on its Travel Management Plan and recently released its proposed action and a set of maps.  In it the Forest Service is proposing to:

·         Create 155 miles of new Off-Road Vehicle trails.

·         Devote an excessive amount of acreage to play areas for cross-country motorized travel (or sacrifice areas) including approximately 6,000 acres of the Lakeside and Black Mesa Ranger Districts.

·         Allow cross-country motorized game retrieval which will result in more user-created routes.  Other than allowing some limited provisions for mobility-impaired hunters, motorized game retrieval is unnecessary, unenforceable, and disruptive to wildlife and to other hunters. In 2006, AGFD conducted a statewide survey of active hunters that found that disruption caused by ORVs was among the top four "barriers to participating in hunting" in Arizona. In fact 54% of the respondents indicated that disruption caused by ORV use was a significant barrier to their participation in hunting.

·         Keep 2,651 miles of roads open.  There are 2,779 miles currently open across the Apache-Sitgreaves National Forest.  Even the most creative math could not make that 80 percent.

·         Close only 438 miles of roads, while opening 371 miles of roads, converting 93 miles of closed and open roads to ATV routes, and establishing 55 miles of new ATV routes.

There are many issues with this proposed action, but closing too many roads is not one of them.  The Legislature should support resource protection as well as the protection of quiet recreation.  The last thing we need is more roads, more disruption, and more habitat fragmentation in our national forests. 

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