Guidelines issued by Interior Secretary Gale A. Norton on Wednesday will make it easier for counties to lay claim to old trails and closed roads they would like to open across federal lands in the West, including national parks in Southern California.
In one of her final actions before leaving her post next week, Norton issued a policy dealing with right-of-way claims under a Civil War-era law that county officials in several Western states have tried to use to circumvent federal land-use restrictions on motorized access.
Norton's memo gives Interior officials nationwide latitude to grant rights of way to counties and other claimants and even approve road construction and improvements.
For a definitive legal ruling, claimants would still have to go to court. Though the policy does not bar claims in national parks and wilderness areas, Interior officials insisted that land managers would not allow destructive road building or improvements.
"Even if you have a right of way, that doesn't mean you can take a two-track and turn it into a two-lane road," said Dan Domenico, special assistant to Interior's solicitor.
"We still have the duty and obligation to protect federal lands surrounding and underlying the right of way."
But environmentalists said the secretary's guidelines amounted to an invitation to counties and other entities to claim everything from hiking trails to dry stream beds and start using them as roads.
"The barriers to [these] claims have been lowered to practically nothing," said Ted Zukoski, a Denver-based attorney with Earthjustice who was involved in a major court case on the matter. "The bar is so low that it has the effect of telling everyone: 'We're open for business. Make a claim.' "
The controversy is rooted in an 1866 law intended to give miners access to their stakes and cattlemen a way to move their herds by granting them rights of way over federal land. Congress repealed the law in 1976 but allowed claims for routes already in existence.
Claims in national parks and wilderness areas would have to be based on uses in existence before those areas were protected.
In 1997, then-Interior Secretary Bruce Babbitt put all but the most pressing claims on hold. But that didn't quiet the controversy.
