Wilderness designation

A wilderness area is recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. Likewise, a wilderness area is further defined as undeveloped Federal land that retains its primeval character and influence, without permanent improvements or human habitation. The land must appear to be primarily affected by the forces of nature, with the imprint of man’s work substantially unnoticeable. The land must have outstanding opportunities for solitude and primitive, unconfined recreation. Wilderness areas must be practical in size and also contain ecological, geological, or other features of scientific, educational, scenic, or historical value (43 USC 1131 (c)).

The law prohibits temporary and permanent roads, motor vehicle use, motorized equipment or motorboats, landing aircraft, mechanical transportation, structures, installations, or private enterprise (43 USC 1133(c)). The president of the United States may allow the construction or maintenance of roads in wilderness areas to maintain water reservoirs, water conservation works, power projects, transmission lines, and other facilities needed in the public interest. Furthermore, this subsection recognized grazing rights established before 1964 as valid and shall continue inside wilderness areas.(43 USC 1133(d)(4)).

Cherry Creek Rd near Young, Arizona

Designated wilderness and RS 2477 roads

It’s quite simple when it comes to designated wilderness areas and RS 2477 roads. The Wilderness Act of 1964 is quite clear when it comes to wilderness designation. Many wilderness areas in Arizona align with RS 2477 routes. It’s common for wilderness areas to have easements to provide access to mines, private property, wildlife tanks, and other water sources. However, there is a baffling amount of wilderness areas that have entirely overlooked RS 2477 roads. This negligence violates the Wilderness Act and could result in the wilderness areas becoming null and void.

RS 2477 is not alone.

In 1976, RS 2477 was repealed. Like we talked about before, the new law recognized existing mineral rights, water rights, grazing rights, etc., as valid. Every single right of way was not affected by the new law. These rights of way include wagon roads, railroads, pack trails, pipelines, transmission lines, canals, waterways, etc. (43 USC 1769(a)). In 1996, RS 2477 became reinforced by the Omnibus Consolidated Appropriations Act of 1997. Section 108 says that all rules and regulations of any federal agency pertaining to recognition, management, or validity of RS 2477 roads, shall not take effect without an act of congress.

Aside from RS 2477, several other laws should be acknowledged. One of those laws is RS 2476 Navigable Rivers as Public Highways. It’s another powerful but forgotten law that should be recognized. It simply states that all navigable rivers are considered public highways. This law dates back to 1796 and is still in effect today (43 USC 931). Also, the US Attorney General has the authority to grant States rights of way over federal land. (43 USC 931a) and (ARS 37 931).

There are hundreds of laws that were repealed by the 1976 Federal Land Policy And Management Act. Most of these laws were in place since the founding of our country. These laws were vital to the settlement of western America. However, all existing holdings under the previous rules were not affected by the new law. The question is, who holds the right to this real property.

If you answered the state of Arizona, well, you’re correct. Arizona holds the rights to all water sources, including rivers, lakes, ponds, roads, and other rights granted under historical laws.

Encroaching on Right Of Way

Cherry Creek Road is the purple line. Sierra Ancha Wilderness border is the red line.

In 1940 the Sierra Ancha wilderness became a designated primitive area. Later, in the 1960s, the Wilderness Act became law, turning the primitive designation into wilderness. The border of Sierra Ancha wilderness runs adjacent to Cherry Creek Rd. Somewhere along the line, someone failed to align the border with the old road. The southern end of the Sierra Ancha wilderness is aligned with the road, while the northern portion is not.

Conclusion

Historical laws such as RS 2477, RS 2476, and others create a significant obstacle for wilderness designations. Instead of following the rules that grant rights to the people, Federal bureaucrats, along with environmental groups, appear to ignore them deliberately.

Author: Kevin Allard

Kevin is an American outdoorsman born and raised in rural Arizona who grew up exploring the Arizona backcountry with his father. Today, he and his son travel to the most remote regions of Arizona, scavenging for the remains of early western pioneers. As a lifelong outdoorsman, Kevin has learned to stick close to his roots while engaging in important advocacy work regarding motorized access to public lands. You can find his work in many local and nationwide publications, including The Western Journal, 4Low Magazine, and his website AZBackroads.com.