Senators Feinstein and Boxer Object to New Rule
which Could Lead to Thousands of Miles
of New Paved Roads in the Mojave, and on other Federal Lands

- Request that the Department of the Interior Stop Processing
Claims to Rights-of-way Filed Under Civil-War Era Law -

March 6, 2003

Washington, DC - U.S. Senators Dianne Feinstein (D-Calif.) and Barbara Boxer (D-Calif.) have called for the suspension of a new "disclaimer of interest" rule issued by the Department of the Interior, which could lead to thousands of miles of new roads on public lands, including 2,500 miles in the Mojave National Preserve and other federally protected lands in California.

California's two Senators have requested that the Department of the Interior suspend processing any disclaimers involving R.S. 2477 rights of way. R.S. 2477 claims were authorized under the 1866 Mining Law and were meant to encourage the development of new roads in the West. However, Congress repealed the law when it passed the Federal Land Policy Management Act of 1976, modernizing how we manage our public lands and grandfathering R.S. 2477 claims in existence at the time.

The Department of the Interior's new "disclaimer of interest" rule allows states, counties, and private organizations to assert claims to rights of way. Previously, only the property owner of record was allowed to make such claims.

If approved, R.S. 2477 claims effectively give state governments, local governments and private organizations ownership of routes across federal land - much of which receives special federal protection. This regulation would allow road construction in protected areas, where only two-tracks (tire tracks), cow paths and wash bottoms currently exist.

In a letter to Secretary of the Interior, Gale Norton, the Senators wrote: "We are writing to express our concern that the Department of the Interior's newly adopted 'disclaimer of interest' rule could allow expedited approval of thousands of miles of roads in federally protected lands in California, including more than 2,500 miles of roads in the Mojave National Preserve. Such roads would dramatically alter the protected character of these lands. We strongly object to the new rule and respectfully request that you indefinitely suspend the processing of any disclaimers involving R.S. 2477 right of way claims.

We find it very disturbing that the Department of the Interior promulgated this rule in direct contradiction to established public law and unambiguous Congressional intent. In Section 108 of the Interior Appropriations Act of 1997 (P.L. 104-208), Congress declared that: 'No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right of way pursuant to Revised Statute 2477 (43 U.S.C. 932) shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.' Such clearly worded language leaves no room for speculation about the law or Congress' intent, which this rule blatantly disregards.

Importantly, previous regulations and the courts have held that the Department of the Interior will only grant rights of way under R.S. 2477 to highways constructed before 1976. Many of the so-called highways that could be considered candidates for a disclaimer of interest were not actually constructed at all. Rather, they are merely intermittent tire tracks that cross otherwise unscathed natural landscapes. Consequently, the new rule jeopardizes the integrity of our national parks, monuments, forests, wilderness areas and wildlife refuges by threatening to open up millions of acres of federally protected lands to unfettered motorized use. Additionally, previous regulations limited applicants for a disclaimer of interest to the owner of record. The new rule allows any entity to apply.

We are particularly concerned with the impact this new rule may have on California's wild lands. R.S. 2477 routes have been asserted in eleven federally designated wilderness areas that we created through passage of the California Desert Protection Act, and existing conservation lands in the Giant Sequoia National Monument. These lands are in danger of being fragmented as a result of this new rule. Within the Mojave National Preserve alone, some 2,567 miles of would-be 'roads' have been surveyed for potential applications for disclaimers of interest. Additionally, this new rule threatens to pave California's precious national parks. For example, R.S. 2477 claims have been asserted in two of the country's most unique and beautiful national parks, Joshua Tree National Park and Death Valley National Park. This new rule for disclaimers of interest threatens to impact the millions of acres of national forests, national parks, wilderness areas, wildlife refuges, conservation areas and other public lands in California by undermining their pristine character, disrupting passive recreational uses and degrading water quality, among other serious implications.

Finally, we are disappointed that the Department developed this rule without greater consultation with Congressional members from impacted states. As you are aware, we have a strong interest in protecting California's wild places. In the future, please consult us regarding any rule changes that might impact areas in California.

Again, we ask that you withhold from processing any disclaimers of interest involving R.S. 2477 right of way claims. Thank you for your time and consideration of this important matter."

###