Congressional nullification opens the door for Arizona courts to decide on road closures

Nullifying The USDA Forest Service Travel Management Rule 36 CFR 212 will open the door for an Arizona court of competent jurisdiction to close roads over Federal public lands. Local control could be the best chance we have to keep motorized access open.

We all know that there are legitimate reasons to close some roads over the public domain. Anybody who spends time in the backcountry knows some people have a complete disregard for the beauty of nature. When you visit the backcountry, you notice roads going everywhere. Many of them are not protected by law, but instead, are permitted by the federal government. While others are protected under law, post-1976 roads are subject to closure by federal land management agencies.

In 1976 the Federal Land Management Policy Act (FLPMA) was signed into law. This law grandfather in every single road in existence at the time. Before 1976, roads were granted under the Mining Act of 1865 and were considered RS 2477 Rights of Way. However, All roads created from that point on were permitted by the federal government and can be closed.

It’s important to consider how the offroad community grew over the past several years. I know for a fact, a lot of roads were created between 1976 and now. Studying topo maps from the USGS, it’s clear that many RS 2477 Right of Way are ignored during travel management planning.

Ignoring the law

Aside from the constitutional concerns, administrative procedure violations, and congressional representation, we encounter an ignorance of RS 2477. When questioned about RS 2477 roads, our federal land managers say the burden of proof is our responsibility. I strongly disagree. The federal law that acknowledges RS 2477 roads is the same law that enables the state to claim the rights to RS 2477 roads.

Representative Mark Finchem proposed legislation to claim all RS 2477 roads over federal land. The bill was passed and became ARS 37 931. The Arizona law clearly says only a “court of competent jurisdiction” can close a road that pre-dates the existence of the FLPMA. The law also acknowledges the state’s right to widen and pave the road or build highways, regardless of condition.

Timeline of the off-road community

In 1976 the off-road community was tiny. It primarily consisted of full-size four-wheel-drive vehicles, Jeeps, and motorcycles. Since 1976 the off-road community has grown exponentially. The unfortunate result is the formulation of more and more roads. As discussed above, these roads do not fall under RS2477.

In the 1980s, the ATC and ATV were released to the market. From this point on, the most inexperienced riders could obtain a trail-ready machine for under $3,000. Between the 1980s and today, the offroad community encountered massive growth. The once small, tight-knit community of Jeep, Bronco, Scout, and motorcycle enthusiasts became the minority.

Now, here we are in 2020 with a whole new machine on the market. The side by side, or better known as the UTV, was single-handedly the most impressive increase the off-road industry has ever seen. In Arizona, UTV’s make up an estimated 43% of our community and has a massive influence on policymaking, economic impact, and public perception.

Conclusion

Between 1976 and today, many new roads have been created as a result of better access to our public lands. These roads should be managed according to law. As mentioned above, if laws, acts, and statues already allow the closure of roads, especially roads built after 1976, why would we allow even more bureaucratic rules and regulations?

The bottom line is, the Travel Management Rule 36 CFR 212 took existing travel management laws, acts, and statutes to the next level. The Obama era rule, supercharged the already existing laws, acts, and statutes that were put in place in the 1970s. The travel management rule took decision making away from the Forest Service, the people of Arizona, our elected officials, state agencies, and local organizations such as the Tonto Recreation Alliance.

Decision making is granted to out of state environmental groups. Environmental groups now do the studies, make the recommendations, and give us our alternatives. This is not how the founding fathers intended it. The laws the federal bureaucracy are violating, are meant to protect rural America, our community, and the people who shoulder the consequence.

These laws acts and statutes were enacted by the dually elected men and women who represent the people. Our community leaders, state representatives, and courts should have the final say when closing any roads within state lines. Congressional Nullification of 36 CFR 212 will put the power of government in the hands of the people. Exactly what the founding fathers intended.

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.