U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
EMS TRANSMISSION 06/01/2006
Instruction Memorandum No. 2006-161
To: All Washington Office and Field Office Officials
Subject: Consultation on Proposed Improvements to R.S. 2477 Rights-of-Way
Program Area: Lands and Realty
Purpose: This Instruction Memorandum (IM) describes the consultation process that must be completed between the holders of a Revised Statute (R.S.) 2477 rights-of-way crossing public land and the Bureau of Land Management (BLM) before any improvement can be made to the right(s)-of-way beyond routine maintenance. Please note that prior to the BLM’s approval of any improvement project, the validity of the claimed R.S. 2477 right-of-way must have been determined, either by a court of law, or by the BLM through its administrative, non-binding determination process. A separate IM describes the process for making non-binding determinations (See IM No. 2006-159).
Policy/Action: The holder of an R.S. 2477 right-of-way that crosses public land must consult with the BLM in advance of making any “improvement” to the right-of-way beyond routine maintenance. Copies of this IM should be shared with state and county governments to facilitate open communication concerning the consultation requirement.
“Improvement” includes the widening of the road, the horizontal or vertical alignment of the road, the installation of (as distinguished from cleaning, repair, or replacement in kind of already existing) bridges, culverts and other drainage structures, as well as any significant change in the surface composition of the road (e.g., going from dirt to gravel, from gravel to chipseal, from chipseal to asphalt, etc.), or any change that may significantly impact public lands, resources or other values.
Consultation with the BLM is required to give the State or Field Office the opportunity to carry out its duty as the manager of the public land over and through which the right-of-way passes.
As an initial step in the consultation process, the holder of the right-of-way should be requested to provide the following information to the relevant State or Field Office:
1) the location of the right-of-way on which the improvement is to be made (This can be shown by the submission of a map, aerial photography or other appropriate means.);
2) an explanation as to why the improvement is reasonable and necessary;
3) a description of the work to be performed, including any engineering plans that have been prepared; and
4) an estimate of the time it will take to make the improvement.
If the holder of the right-of-way fails or refuses to provide the requested information, the relevant State or Field Office should not proceed with the consultation process.
Once the relevant State or Field Office has received the requested information, it must:
1) determine whether the proposed improvement is reasonable and necessary in light of the traditional uses of the right-of-way as of October 21, 1976; and
2) determine whether the proposed improvement would impair or degrade the surrounding public lands, and, if so, whether there are modifications to the proposed improvement that would adequately protect those lands.
Is the proposed improvement reasonable and necessary? Whether a proposed improvement is reasonable and necessary is primarily a question of state law, as applied to the existing uses of the road when the Federal Land Policy and Management Act was passed in 1976. Typically, the establishment of a public highway—i.e., in this context, the acceptance by a state or county of the grant of an R.S. 2477 right-of-way from the Federal government—carries with it the right to make such improvements to the right-of-way as are reasonable and necessary to sustain the use that was being made of the right-of-way in October 1976.
In Utah, for example, a project to widen a one-lane dirt road to insure the safe passage of vehicles driving on the road would likely be considered reasonable and necessary. On the other hand, that same road could not be converted into a four-lane highway without the grant of an additional right-of-way. State and Field Offices should consult with the Solicitor’s Office to determine the type of improvements that would be considered reasonable and necessary under a particular state’s law.
In making the reasonable and necessary determination, the State or Field Office will need to determine the traditional use (or uses) being made of the right-of-way as of October 1976. This information will likely have been gathered and assessed at the time the office made its non-binding validity determination with respect to the existence of the right-of-way. (See IM No. 2006-159). To determine use is to determine why (for what purposes) and how (by what means of transportation) the right-of-way was being used as of October 1976.
If the State or Field Office determines that a proposed improvement is not reasonable or necessary, a written explanation of the reasons for the determination should be given as soon as practicable to the state or county proposing the improvement, and the state or county should be allowed to review the evidence on which the determination is based and provide additional information or comment.
Will the proposed improvement impair or degrade the surrounding public lands? If the proposed improvement is reasonable and necessary, the State or Field Office must then determine whether it would impair or degrade the surrounding public lands. To make this determination, the State or Field Office should follow established National Environmental Policy Act (NEPA) compliance policies and procedures.
It is worth noting that there are at least three categorical exclusions that may apply to proposed improvement projects (516 Departmental Manual Chapter 11):
If, following completion of established NEPA policies and procedures, a determination is made that the proposed improvement may impair or degrade the surrounding public lands, the State or Field Office should determine if there are alternatives or modifications to the proposed improvement that would serve to adequately protect the surrounding public lands and, if so, they should also determine the willingness of the state or county to adopt the alternative or make the modification.
Following a determination of whether the proposed improvement will impair or degrade the surrounding public lands, on the impairment issue, a written explanation of the reasons for the determination should be given, as soon as practicable, to the state or county proposing the improvement and the state or county should be allowed to review the evidence on which the determination is based and to provide additional information or comment.
The State or Field Office will make its determinations in a timely and expeditious manner, so as not to impair the rights of the holder of the right-of-way.
Timeframe: This IM is effective upon receipt.
Background: The Secretary’s Memorandum to Assistant Secretaries dated March 22, 2006 provides direction how the Department will carry out its obligations following the Tenth Circuit Court of Appeals’ decision in Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735 (10th Cir. 2005) (hereinafter SUWA v. BLM) (Attachment 1 of IM No. 2006-159). The Secretary’s Memorandum also directed “affected Interior agencies to issue, as necessary, revised instructions or guidance consistent with the SUWA v. BLM decision and this memorandum.”
Budget Impact: The additional expenditure of funds and staff time is unknown at this time.
Manual/Handbook Sections Affected: The 2800 series Manual/Handbook and the National Environmental Policy Act Handbook H-1709-1.
Coordination: This guidance was coordinated with the Solicitor’s Office, BLM’s Washington Office, and with State Office technical staffs and managers involved in the R.S. 2477 program.
Contact: If you have any questions or concerns regarding this policy, please contact Jeff Holdren, Lands and Realty Group (WO350) at 202-452-7779 or via email at email@example.com.