Paving Paradise? : Bitter Dispute Brews Over U.S. Attempt to Restrict Road-Building in Nation’s Scenic Wilderness Areas

A battle over property rights, waged across western states for more than two decades, has heated up again with an attempt by the Clinton Administration to curtail the development of roads across national parks and wilderness land.

The controversy affects some of America’s wildest and most beautiful land, including Alaska’s Denali National Park, where 30 proposed roads would crisscross the habitat of bears, wolves and a host of other wild animals; Alaska’s remote Wrangell-St. Elias National Park and Preserve, where more than 100 roads are in the offing; the red rock canyon country of southern Utah, where more than 5,000 roads are being considered, and proposed wilderness and national parkland in California’s eastern deserts, where a network of old trails could be opened up to motor vehicles.

The fight hinges on an obscure 1866 law that encouraged development of the West by offering to grant rights of way for roads across most federal lands. The law was repealed 18 years ago, but that did not nullify rights of way granted to states and counties under the old law.

Now, a combination of state and local officials, with backing from off-road vehicle users, mining and ranching interests and real estate developers, are claiming the right to make modern roadways out of thousands of miles of dirt roads, wagon tracks, footpaths and even dog sled trails.

Addressing the issue for the first time Friday, U.S. Interior Secretary Bruce Babbitt proposed regulations that would limit the ability of states and counties to further develop any right of way that was not a highway in 1976, when the original law was repealed.

Even though environmental groups applauded the proposed rules--which is subject to a 60-day comment period--they urged Babbitt to strengthen them.

“The regulations are adequate in that they appear to disqualify footpaths and Jeep trails and dog sled tracks that were never developed as highways,” said Eldon Hughes, chairman of the Sierra Club’s desert committee. “But they are a little squishy in defining exactly what constitutes a highway.”

Hughes said that developers might define a highway in 19th-Century terms.

“A highway in 1866 wasn’t much more than a flat surface with drainage,” he said. “We need a better definition of what is meant today or people will still claim that a whole lot of primitive routes qualify.”

Critics of the proposed rules said they would abridge the rights of states and local communities dating back 100 years.

“It’s a power grab, it’s illegal and it’s more of Babbitt’s war on (the) West,” said Dan Kish, staff director for Republican members of the House Natural Resource Committee.

Babbitt and the Clinton Administration have come under fire from western business interests for proposals to raise grazing fees, reform mining laws and restrict logging in old-growth forests in the Pacific Northwest. Now critics argue that the right of way regulations would go beyond stopping roads from being built.

“We have thousands of roads across rural Utah that are used by the public every day and according to these regulations many of those roads will be shut down,” said Jim Hansen, a Republican congressman from Utah.

Rep. Jerry Lewis (R-Redlands) said he shares the same fears when it comes to residents of some California desert communities.

“You could be cutting off pockets of people from the rest of civilization,” Lewis said.

In California, the controversy could revive hopes for more vehicular access to 8 million acres slated for protection under a desert protection bill approved by the House last week. The bill would expand Death Valley and Joshua Tree national monuments, upgrade both to national parks and designate the East Mojave National Scenic Area as a “preserve.”

The bill would ban motorized recreation in the protected areas, but right of way claims could reopen the issue.

“I am not one who favors making the desert unapproachable to all but the hardiest and the youngest people who are prepared to hike hundreds of miles,” Lewis said. “I’m not in favor of anything that would help the extremists lock up a vast percentage of land so that most people can never see it again.”

The critics say the dispute probably will end up in the courts.

“This Administration has decided to use government regulation to change 100 years of case law and settled policy,” Kish said. “The right to make a highway out of a footpath has been pretty flexible up to now. The issue now is whether the federal government can go back and redefine the terms of the original law granting authority over rights of way.”

Some critics also accuse environmental groups of sounding a false alarm over the issue. They contend that the construction of new roads is restricted by laws protecting endangered species, wetlands and other natural resources.

Environmentalists scoff at that contention.

The Natural Parks and Conservation Assn., the leading group in the fight for the regulations, argues that that there is not sufficient protection against the onslaught of road building that could occur in some places.

The association notes that in Alaska, 1,700 right of way claims have been made to build roads through most of the state’s 18 wildlife refuges and across 13 of 15 national parks.