When is the road less traveled not really a road? Depends on whom you ask.
To state and county officials, any route across federal lands is a public right of way owned by the respective county.The U.S. Bureau of Land Management says "prove it" and has given local officials two years to document their ownership of thousands of miles of dirt roads - or lose any legal claim to them.
"Legally, I don't think they (BLM) can come in retroactively and through rulemaking deny ownership of something that was granted by law," says John Harja of the state Office of Planning and Budget.
Harja echoes the same concern of Sen. Bob Bennett, R-Utah, who stated that the proposed BLM reg-u-lations "would result in dramatic federal takings of property rights and could potentially cripple the West."
The fear prompted a group of eight governors gathered recently in St. George to tell the BLM to back off.
Access to federal lands was one of several environmental and public-lands issues raised by the governors, who are using those issues as flagships in their armada against the federal government, whose power, they say, is out of balance with that of the states.
The states rights campaign has put environmentalists in the uncomfortable position of defending federal environmental laws, chief among them the laws pertaining to building and maintaining roads on public lands.
The governors' concern about those access laws is much ado about nothing, says Terri Martin, regional director of the National Parks and Conservation Association.
Opposing the BLM's regulations "makes a great line of rhetoric and scares people and causes them to be anti-federal government, but I think it's an unrespectable way to play the game," Martin said.
At issue is "Revised Statute 2477," an 1866 law that stated: "The right of way for the construction of highways over public lands not reserved for public purposes is hereby granted." The law, whose purpose was to facilitate the taming of the West, granted anyone the right to construct highways across unreserved federal lands without having to apply for a right-of-way permit.
In Utah, the "construction" of these roads often consisted of nothing more than driving a four-wheel-drive vehicle over the same route so many times it became a recognizable route.
In 1976, Congress, realizing the West has been settled, passed the Federal Lands Policy Management Act, which repealed RS2477, saying that all roads built on public lands must first pass environmental muster. The act, however, had a grandfather clause that protected established rights of way constructed prior to 1976.
But RS2477 remained open to interpretation. What does "construction" or "highway" mean? Does a horse trail or a dogsled track in existence for 100 years constitute a public right of way?
In 1988, former Interior Secretary Donald Hodel issued a liberal interpretation of the law, allowing states a relatively free hand in claiming rights of way.
Current Interior Secretary Bruce Babbitt reversed the Hodel decision and, at the request of Congress, proposed regulations to clarify what is an RS2477 highway and how to claim it.
"Congress wants this issue settled, and that's what these regulations would do," said BLM director Mike Dombeck.
State officials believe the BLM is essentially trying to nullify the grandfather clause by demanding detailed documentation of every road across federal lands - a process they say requires hundreds of hours of research for each road.
So far, there are about 5,000 pending RS2477 claims in Utah, and tens of thousands more in other Western states. "The cost is tremendous," Harja said, "and the process is going to be a night-mare."
Martin disagrees that the BLM is trying to nullify the grandfather clause. "They are not going to take away legitimate rights of way established before 1976," she said. "They are only trying to assure that states and counties can't reach beyond what that law meant."
As for documentation, Martin says the claimant only has to provide evidence that the route is a "highway" on which vehicles carry people or goods and that its construction has left an observable, durable surface.
State and local officials fear that their failure to properly document an RS2477 highway could result in the government's "taking" the road back - sort of a federal land grab.
Martin argues, however, the federal government can't take back something that never belonged to the claimant in the first place.
"These guys think they can come in and claim ownership of federal land without providing any evidence," Martin said. "It's like taking a TV out of a store and saying, `Oh, my mom already paid for it.' "
The issue is key to Gov. Mike Leavitt, who uses RS2477 in his crusade for a better balance of power between the states and Uncle Sam.
For generations, these roads provided access to state trust lands and private lands, access by ranchers, miners, hunters and other outdoor enthusiasts.
But the proposed BLM rules, said Martin, are not for controlling access. They're to prevent people from circumventing environmental regulations. Those who claim the government is blocking access are ignoring reality, she said. In Utah, for example, more than 700 rights of way have been issued by the BLM since 1976. Last year, Uintah County obtained 17 new rights of way on federal land.
The vote by the eight governors at the St. George meeting may have signaled a shift away from protracted negotiations with the BLM on complex environmental issues as well as a greater willingness of states to flex their political muscle now that Republicans control Congress.
They face a long, bumpy road convincing everybody, however. The Utah Women's Legislative Council recently voted against resolutions urging the delay or defeat of the BLM rules.
And every major environmental group is behind the proposed BLM rules, primarily for one reason: Back-country routes claimed as rights of way could thwart wilderness designation because one of the main criteria for wilderness is the absence of permanent roads.
Tomorrow: Is the Endangered Species Act threatened with extinction?