by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
Several years ago, Utah filed a suit insisting that the federal government turn over to the State 12,000 roads that cross federal lands within Utah. Few officials noticed, as disputes over who controls public roads on federal lands are nothing new. But the federal judge hearing this case just sent shock waves through Washington with an 80-page ruling containing an analysis worthy of the highest court, refusing to dismiss the case, and excoriating the government for trying to thwart the clear intent of the law.
It is at least the 10th time in recent memory that federal courts reined in federal agencies asserting absolute authority over public roads across public lands.
The case cannot be understood without historical context. In the 19th century, the greatest challenge in settling newly acquired western lands was the lack of any transportation systems. The Homestead and Mining Acts gave away land to people who settled it, but aside from the Oregon, Santa Fe and Old Spanish trails, there were few roads out West. So, the government offered railroads wide rights-of-way to build tracks, stations, water tanks, switches and other facilities just about anywhere they wanted. Congress readily subsidized surveys and expeditions to find the best routes. Whatever incentives it took to help occupy and settle the West.
Besides railroads, regular roads were also needed to get people to and from their remote towns and farms. This was a major hindrance to the government’s goal of encouraging settlement in the West, since such access roads would have to cross lands that had not yet been privatized. So, if a rancher wanted to access his farm many miles from the nearest town, must he homestead all the land in between, just to build a road? Within four years of the Homestead Act’s passage, it became clear that a law authorizing roads across public lands was badly needed.
