Courts Keep Desert National Parks Free Of New Roads

Last Chance "Road" in Death Valley National Park | Photo: Ted Zukoski, Earthjustice

A pair of court cases came to a close this month that spelled good news for two of California's National Parks. On June 6 a U.S. District Court judge dismissed a claim by Inyo County to an alleged road running through the north end of Death Valley National Park, the last of several such claims. On the next day, a settlement was announced between San Bernardino County, the National Park Service, and a group of environmental organizations, all parties to a suit filed by that county over about 250 miles of roads in and bordering the Mojave National Preserve.

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At issue were the lingering effects of a 146-year-old mining law that over the last two decades has become an unlikely tool of the anti-environmental movement. Revised Statute 2477 (RS 2477), passed during a period of aggressive government promotion of settlement of the West, gave counties the right to build roads through Federal lands that had not been set aside for some other purpose. Though the law was repealed in 1976, Ronald Reagan's Interior Secretary Donald Hodel opined in 1988 that counties could still lay claim to routes they'd established before the 1976 repeal.

This "Hodel Policy," announced during the peak of the conservative, anti-environmental Sagebrush Rebellion, launched a flurry of activity throughout the West. Counties in many Western states launched claims to tens of thousands of miles of alleged routes on Federal land. Some of these routes were indeed established, well-used roads, some of them continuously maintained. Others were spurious at best: wagon paths used sporadically a century ago that had been washed out for 50 years; historic Indian footpaths that had never once carried vehicular traffic; or desert canyons which could not be driven without winching vehicles up and down cliffs.

The reasons for the claims were manifold. Some involved routes that ran through designated wildernesses, and granting the claim would have undermined wilderness protection in the area. Others were either ORV routes or routes the local ORV lobbies wanted access to. Still others ran to abandoned mines or private lands that someone wanted to develop.

And some claims were made just so that the counties could keep their metaphorical fingers in the pie, as a way of challenging federal land management practices wherever possible. In a precursor to the San Bernardino suit settled this month, the county resolved in 2001 to lay claim to 4,986 miles of, in the words of the resolution, "roads, mining roads, logging roads, trails, horse trails, hiking trails and footpaths" within the county limits. That much road could get you from the Mojave Preserve to the Interior Department's headquarters in Washington, DC, and then back. 2,567 miles of those claimed routes were actually in the Preserve.

San Bernardino County had scaled back its RS 2477 claims inside the Preserve rather dramatically by the time of the settlement this month: only actual roads used by actual vehicles every day were at issue. The settlement grants the county the right to maintain two roads that border the Preserve, and places management of the remainder in the hands of the Park Service. This is an environmental boon, in that it keeps the county from arbitrarily deciding to widen roads in the Preserve, or to pave current dirt roads, under the guise of "maintaining" them. The county also agreed to give up any claim to the other 2,317 miles of alleged roads in the Preserve.

As for Inyo County's suit, Judge Anthony W. Ishii sided with environmental groups, who had intervened in the case on behalf of the National Park Service, when he found that Inyo's claimed "Last Chance Road" was not only used sporadically if at all, but that the county couldn't even locate the "road" precisely.

The environmental group intervenors -- Sierra Club, The Wilderness Society, California Wilderness Coalition, National Parks Conservation Association, Center for Biological Diversity, and Friends of the Inyo -- were represented in court by Earthjustice. In a blog post last week, Earthjustice's John McManus detailed the groups' take on Last Chance Road:

Inyo County called one of the paths in question the "Last Chance Road," but it might as well have been called the "Road to Nowhere." The route was little more than a sandy desert streambed for much of its path, and then it veered to two or three different destinations, depending on which maps you looked at -- a point Earthjustice's Zukoski and Kay made to the judge. Wash bottoms and little-used paths that don't go any place in particular don't count as "highways" under the law.

Last Chance Road was the last chance Inyo County had to win any part of its suit. Ishii had dismissed Inyo's claims for other Death Valley routes in 2008 because the county filed its claims too late.

All in all, it's been a good month for anyone who'd rather see California's desert parks remain intact, without roads carved into the landscape along any route someone one pulled an oxcart through once upon a time. These two judicial outcomes further undermine a law written before the smoke had cleared from the Civil War. If they help close RS 2477 as a route to development of public lands, it will be none too soon.

Chris Clarke is an environmental writer of two decades standing. Director of Desert Biodiversity, he writes from Palm Springs regularly at his acclaimed blog Coyote Crossing and comments on desert issues on KCET weekly. Read his recent posts here.

About the Author

Chris Clarke is a natural history writer and environmental journalist currently at work on a book about the Joshua tree. He lives in Joshua Tree.
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