 By LIZ RUSKIN McClatchy Newspapers March 23, 2006
"This is classic Gale Norton," said Heidi McIntosh, conservation director for the Southern Utah Wilderness Alliance. "It's like getting punched in the head with a velvet glove." The policy, issued Wednesday, tells park superintendents and other land managers how to cope with an 1866 law that is goes by an ungainly name: R.S. 2477. This law, and now Norton's policy interpreting it, inspires nightmares among conservationists, who invoke images of state road graders intruding on wilderness and four-wheelers running amok on hundreds of miles in Denali National Park.
The 140-year-old statute grants local governments "the right of way for the construction of highways" across federal land. It was repealed in 1976 but still applies to older roads and trails, mostly in Alaska and Utah. What kinds of routes are covered is a matter of fierce dispute. Alaska has identified more than 600 it says are state rights of way under R.S. 2477. The state sees 14 of them in Denali National Park, nearly 50 are in the Wrangell-St. Elias National Park, and six in the Arctic National Wildlife Refuge, said Kahlil Wilson, an access specialist at the Alaska Department of Natural Resources. Environmentalists complained Wednesday that Norton's new policy goes further than the law or courts require. It would allow local government to turn hiking trails and cattle tracks into highways, they complained. "This absolutely shows the she has made the choice to blow the doors open to counties and states. (She's) saying, 'Come in! We're going to make it easier for you. ... We'll give you a right of way,'" said Ted Zukoski of Earthjustice. The Interior Department says the policy does no such thing. "This policy is about roads that already exist," said Dan Domenico, special assistant to the Interior Department solicitor. "If a trail is a trail, it will stay a trail under this policy." If a local government wants to expand an old park trail into a road, normal regulations and federal land protection laws would kick in, he said. He acknowledged that the policy "provides a mechanism for creating a small improvement that's in line with traditional use." That kind of flexibility alarms environmentalists. And they don't like that Norton's policy directs land managers to rely on state law to define what kind of corridor establishes a right of way. John Katz, head of Gov. Frank Murkowski's office in Washington, said the policy is a mixed bag for Alaska. On the plus side, he said, the policy recognizes traditional uses in establishing access rights. "Foot traffic and dog sled uses are sufficient" to establish a right of way, Katz said. He also likes the reliance on state law but believes it doesn't go far enough. The guidelines say the width of the right of way is confined to the area actually used for access. "We believe that state law should govern the width of a right of way," he said. "Under Alaska law the width of a highway is usually fixed at 100 feet." In almost every case, the state would be fine with the physical-use boundary, he emphasized. "There may be a few where the state would eventually want to use the area that's allowed under state law," he said. For example, he said, a trail between two villages. Norton recently announced her resignation, effective at the end of the month. McIntosh, the Utah conservationist, said this parting shot is typical of Norton's five years as Interior secretary. It has a lot of "comforting language" about the duty of federal land managers to protect public lands, but a careful reading reveals the devastation, she said. Domenico said the policy does nothing drastic. "The environmentalists are trying to make this into a bigger deal than it is," he said.
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