What is the Final Rule on Conveyance, Disclaimers, and Corrections?
On January 6, 2003, the U.S. Department of Interior (DOI) published a final rule that amends 1984 federal regulations regarding "recordable disclaimers" of interests in lands. The recordable disclaimer process enables the federal government to renounce any interest in a particular piece of land when the federal government has no interest or valid claim to such land.

The recently issued final rule addresses whether states, counties, and local governments can benefit from such disclaimers, even when they aren't recorded as owners of any land at issue. The changes also permit states and local governments to ignore a statute-of-limitations requirement that applies to all other property owners.

Why is this Rule So Significant?
The disclaimer rule is not a minor administrative change, as the Bureau of Land Management (BLM) has suggested. It is a major policy change. Through the final rule, it would become easier for DOI to give local governments rights-of-way to cow paths, horse trails, river beds, and dirt bike and off-road vehicle routes that criss-cross public lands across much of the West and in Alaska -- including National parks, designated Wilderness Areas, Wilderness Study Areas, and National Wildlife Refuges, as well as military reservations, tribal lands, and private lands -- using an 1866 mining law called Revised Statute 2477 (RS 2477) that was actually repealed 25 years ago. These paths, trails, and routes could then be bulldozed, made into paved highways, or otherwise developed.

The effect of granting these rights-of-way through a rule change is that many of our remaining pristine public lands in the West and in Alaska may no longer qualify for permanent protection as wilderness, and could be damaged by significant road-related development. Road and highway development on these "roads to nowhere" will destroy and fragment wildlife habitat, cause erosion, degrade water quality, spread weeds, and harm archeological sites.

Previous reports by the National Park Service have concluded that the impacts of RS 2477 on National Parks "could be devastating," and found that granting such claims "would undoubtedly degradate [sic] most [Park] values and seriously impact the ability of the [National Park System] to manage the [Parks] for the purposes for which they were established." Some examples of the places at risk include: Denali National Park (AK); Grand Staircase-Escalante National Monument (UT); Mojave National Preserve (CA); and Canyonlands National Park (UT).

Has DOI Previously Applied the Disclaimer Process to RS 2477?
NO. While the law permitting DOI to issue disclaimers was issued more than two decade ago, this rule change is the first time DOI has stated the disclaimer rule could be used to surrender publci lands for development under RS 2477.

What Lands Are Affected by the Rule Change?
DOI asserts that the rule applies to ALL federal lands -- including lands managed as National Parks, National Forests, National Wildlife Refuges, wilderness areas, National Recreation Areas, and even military bases and training areas. These lands total hundreds of millions of acres.

Does the Federal Government Analyze the Impacts of Surrendering Sensitive Lands to Local Governments for Highway Development Before it Gives Up a Right-of-Way?
NO. DOI makes clear in the rule that it will NOT analyze the environmental effects of either: (a) this rule change; or (b) ANY decision to hand over the right to develop and individual "road to nowhere," no matter how sensitive the land the route crosses.

Will the Final Rule Reduce Litigation Related to Public Land Issues?
NO. On the contrary, the rule may increase litigation. While the public may comment on a decision to disclaim interest in lands, the proecss of determining whether a valid right-of-way exists is not open to the public. The DOI states that the public will have no chance to appeal right-of-way and disclaimer decisions, so court action may be the only way to challenge decisions degrading sensitive public lands.

Can the States and Counties Obtain Rights-of-Way Across Federal Lands for Legitimate Purposes Without Resorting to Lawsuits?
YES. Even without the disclaimer rule, states and counties may apply for and obtain rights-of-way under provisions of the Title V of the Federal Land Policy and Management Act (FLPMA), the 1976 law that repealed RS 2477. These provisions require, among other things, an analysis of environmental impacts of granting the right-of-way. In Alaska, Title XI of the Alaska National Interest Lands Conservation Act (ANILCA) provides an additional way for the state and private parties to obtain rights-of-way across National Parks, Refuges, and Wilderness Areas. Issuance of a Title XI right-of-way also requires a careful environmental analysis and public participation.

Is it an Exaggeration to Say that There Would Be an Avalanche of Road Project Unleashed by the Disclaimer Rule?
NO. Some counties and state are poised to press thousands and thousands of these claims. The State of Utah sent a letter to DOI in 2000 claiming more than 10,000 individual routes across public lands. The State of Alaska has already identified more than 650 right-of-way claims. The new rule would allow states and local jurisdictions to request "disclaimers" on all of these rights-of-way.

In addition, in comments on the rul change, San Bernardino County (CA) expressed concern about bearing the cost of processing multiple RS 2477 claims through the disclaimer rule "because the number of claims the county might potentially file could create a financial burden" on them. Gilpin County (CO) and Valley County (ID) also expressed concerns about how DOI would address cost issues when counties submitted multiple claims. After the rule change was announced, Moffat COunty (CO) moved to finalize numerous claims that could result in development of scores of new roads on cow paths and other trails through Dinosaur National Monument, a wildlife refuge, and half a dozen wilderness study areas.

Why is this Proposal Different than the RS 2477 Resolution Propsed by Secretary Babbitt and 1994?
Secretary Babbitt's 1994 proposed rule would have set clear, concise standards for determining when a state or local government has obtained a right to use a specific route under the repealed RS 2477 statute. The disclaimer rule sets no such standards and teh current DOI has not established standards for determining the validity of RS 2477 claims. Also, the 1994 proposed rule would have permitted any affected person to appeal to the BLM any decision on a particular route. DOI says the recent disclaimer rule permits only "applicants or claimaints" with an interest in the land to appeal, not the concerned public.

Is this Rule Change Legal?
NO. In 1997, Congress prohibited DOI from issuing final rules related to RS 2477; the General Accounting Office (as well as DOI previously) concluded that this was a permanent prohibition. In addition, Congress did not intend for DOI to use the disclaimer rule to be used to address RS 2477 rights-of-way when it passed FLPMA in 1976. The rule is inconsistent with current law because it permits counties and local governments to avoid the 12-year statute of limitations on filing claims to roads to nowhere.