Road Rage and R.S. 2477: Judicial and Administrative Responsibility for Resolving Road Claims on Public Land

The past decade has seen the D-4 Caterpillar bulldozer become a significant tool for those seeking to challenge federal land management agencies\u27 authority to protect resources federal lands by reducing access. The power of the bulldozer is both symbolic and pragmatic. It cuts an iconographic image of local officials standing up against federal control over vast areas of land in the rural west. But it also, in many cases, provokes litigation, allowing claims to property rights to receive judicial attention that might otherwise evade them. Underlying each of these protagonist\u27s legal positions, if not their motivations, is a right-of-way grant enacted as part of the Mining Act of 1866: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” For 110 years, from its enactment in 1866 until its repeal in 1976, this obscure statute known as R.S. 2477 granted the right-of-way across unreserved federal public lands for the construction of highways. For most of its lifetime, the terse and obscure grant caused little stir, except for the occasional claim that now private lands are subject to R.S. 2477 rights-of-way established during earlier public ownership. Since its repeal, however, R.S. 2477 has become a flashpoint in the ongoing battle for control over western public lands and the resources they harbor. Throughout the west, states, counties, and even individuals and groups pushing for unrestricted motorized access to remote public lands are using R.S. 2477 to try to frustrate environmentally protective measures imposed by federal land managers. Some of these groups are seeking to establish R.S. 2477 highway claims in order to preclude the potential future designation of public lands for protection under the Wilderness Act of 1964. An overlooked aspect of the R.S. 2477 controversy has been the allocation of responsibility among federal courts and federal land managers--specifically, the Department of the Interior (“DOI”)--for resolving disputed R.S. 2477 claims. Whether courts or federal land managers have primary authority to interpret and apply R.S. 2477 is more than a question of mere procedure or choice of forum. It is central to the ability of federal land management agencies to administer the obsolete land grant in a way that harmonizes the intent of the Congress that created it and the intent of Congresses that have since repealed the grant and mandated the management of public lands for various uses, including protecting their primitive condition. This Article argues that federal land management agencies should replace the courts as the institution with primary responsibility for resolving issues that arise from R.S. 2477 claims. In this view, DOI should be accorded the opportunity to interpret R.S. 2477 and to make an initial determination of the validity and scope of claimed R.S. 2477 rights-of-way. The judicial role, though still substantial, would be limited to that customary in administrative law cases, namely, the review of agency action for abuse of discretion and impermissible resolution of statutory ambiguities. Agency primacy would ensure the consistency and uniformity of R.S. 2477 decisions and, if the process is properly structured, ensure that the unique problems presented by this antiquated grant are, at long last, finally settled in a manner that both permits public participation and interpretation of R.S. 2477 in the proper context of the modern public land management regime

Associated General Contractors v. Board of Oil, Gas and Mining, Department of Natural Resources, State of Utah : Brief of Appellant

APPEAL FROM THE THIRD DISTRICT COURT IN AND FOR SALT LAKE COUNTY, JUDGE STEPHEN L. HENRIO

Peace and Justice: Notes on the Evolution and Purposes of Legal Processes

This text of the inaugural lecture for the A.B. Chettle, Jr. Chair in Dispute Resolution and Civil Procedure at Georgetown University Law Center presents an intellectual outline (theory and practice) for a house of justice built on the foundations of Lon Fuller, the Legal Process school, Jurgen Habermas\u27 and Stuart Hampshire\u27s social philosophy about democratic processes, the floors of comparative processes, drawing on the work of political theorist Jon Elster and empirical work on legal and political processes and the ceilings of new processes, like consensus building fora, truth and reconciliation commissions and other combinations of legal and political processes. A model of different modes of human conflict resolution is outlined with differentiations of different forms of process (open/closed; plenary/committees; expert/naturalistic; constitutive/permanent/ad hoc). The article suggests a broadened view of what should be taught as legal process - beyond conventional civil procedure to many more forms of human legal and political processes. If process is the human bridge between justice and peace then we much teach about both kinds of processes - those seeking justice and those seeking peace; hopefully they can both be accomplished

E-rulemaking: Information Technology and the Regulatory Process: New Directions in Digital Government Research

Electronic rulemaking, or e-rulemaking, offers the potential to overcome some of the informational challenges associated with developing regulations. E-rulemaking refers to the use of digital technologies in the development and implementation of regulations. The use of these technologies may help streamline and improve regulatory management, such as by helping agency staff retrieve and analyze vast quantities of information from diverse sources. By taking better advantage of advances in digital technologies, agencies might also be able to increase the public\u27s access to and involvement in rulemaking. Part I of this article details the rulemaking process, outlining the procedures agencies must currently follow in developing new regulations and highlighting some of the problems generally associated with rulemaking. Part II considers ways that information technology may be able to improve the rulemaking process, as well as discusses some of the chief goals, choices, and challenges associated with e-rulemaking. Part III presents a cross-disciplinary agenda for research intended to contribute to e-rulemaking\u27s long-term potential for improving government regulation and enhancing the management and legitimacy of the rulemaking process

Creating Rights in the Age of Global Governance: Mental Maps and Strategic Interests in Europe

This Article takes a first step towards developing a positive theory of rights in institutions of global governance through a study of the European Commission, one of the oldest and most powerful international organizations in existence today. I draw on the extensive political science theory on the European Union, in particular historical institutionalism, to explain the constellation of rights that European citizens are guaranteed today in their relations with their executive branch. Rights against government were created in three phases, each of which was the product of a strategic move by one or more European institutions to preserve authority in the face of opposition and each of which drew from a mental map of good government developed within the confines of the nation-state. As a result, today, European citizens enjoy three major, historically distinct, sets of rights in their relations with Europe\u27s executive branch: the right to a hearing, drawn from the English common law tradition, the right to transparency, based upon northern traditions of open government, and the right to civil society participation, derived from both the international sphere and domestic traditions of corporatist interest representation. This Article also considers a number of competing theories of rights in European governance and shows that their predictions are not borne out by the evidence. Lastly, I develop the implications of my theory for another, emerging system of global governance, the World Trade Organization