June 8, 2012

Supervisor Opposes Settlement with U.S. on County Roads in Mojave National Preserve

Secret settlement a disservice to the public and property owners

Highland Community News

SAN BERNARDINO – Despite leading the effort that resulted in perhaps the first-ever legal recognition of County rights of ownership of roads on federal lands, San Bernardino County Supervisor Brad Mitzelfelt ultimately opposed and voted against the resulting settlement between the county and the federal government that was announced today.

Supervisor Mitzelfelt’s opposition was based on concerns about future vehicular access and convenience of the public as well as property owners within the Mojave National Preserve.

“I recommended that the Board of Supervisors initiate this lawsuit five years ago to ensure the county’s rights to maintain the roads in the Mojave National Preserve, not to turn the roads over to the National Park Service,” Supervisor Mitzelfelt said. “The Board’s final decision was not consistent the Board's original intent and certainly not consistent with my intent to preserve access and county control of roads in the preserve on behalf of our residents and visitors.”

The Mojave National Preserve takes in 1.6 million acres between Interstates 15 and 40 west of and bordering the Nevada State Line. The roads – including Kelbaker, Ivanpah, Essex, Lanfair and Morning Star Mine Roads – are important routes for travelers and commerce across the desert. But one example of disputes over authority between the county and the Park Service was the Park Service’s action posting signs prohibiting commercial vehicles when the preserve was first established by the Desert Protection Act in 1994.

Supervisor Mitzelfelt said the county believes the settlement represents the first time the federal government has formally recognized that county roads on federal land are valid and protected rights-of-way under a federal law passed in 1866.

“While I am pleased we were able to convince the federal government to agree to recognize our road rights-of-way, it is largely a symbolic victory unless and until someone can successfully convince a federal authority that it set some kind of a precedent,” Supervisor Mitzelfelt said. “The agreement specifically says it does not set a precedent, but I still hope our county or perhaps even another county or state will be able to derive some benefit from what was agreed to in this settlement.”

Added Mitzelfelt: “I also feel that the settlement process, carried out in secret, which under federal court rules and procedures is perfectly legal and proper, has nevertheless done a disservice to the public and the property owners within the preserve by not giving them a voice in the matter until after a final decision had been made.”

In October 2006, the County filed a “quiet title” action against the United States and the U.S. Department of the Interior seeking acknowledgement that 14 county maintained roads within, and adjacent to, the Mojave National Preserve are permanent and protected rights-of-way under Revised Statute 2477, part of the Mining Act of 1866, which allowed construction of roads across public lands.

R.S. 2477 was repealed in 1976 and replaced with the Federal Land Policy and Management Act, which subjects the county to extensive environmental review and regulatory costs when it is invoked on county roads not established or authorized under R.S. 2477 before it was repealed.

Because the county was never able to secure official acknowledgment or documentation of R.S. 2477 rights from the Department of Interior, despite extraordinary efforts to do so, it decided to file suit to force the issue.

During settlement negotiations, the idea was advanced that the federal government could recognize the county’s assertion of control over the roads but then the County could turn over most of the roads to the federal government. Although the Board of Supervisors was not directly involved in the negotiations, Supervisor Mitzelfelt was briefed on the matter throughout because the preserve is located within his district. When negotiations turned toward ceding roads to the federal government despite his personal opposition to the idea, he began pushing for binding provisions that the roads would be maintained, and most importantly, kept open, in the event they were transferred to federal ownership.

The county and Park Service agreed to enter into a Memorandum of Understanding requiring the two agencies to work together on issues of maintenance and safety improvements, along with acknowledgement of the county’s need to keep the roads open for public use. But Supervisor Mitzelfelt said he feels that the MOU and settlement may not sufficiently bind the federal government to keep routes open.

“Based on my own conversations with the Park Service, I have little confidence that they will be appropriated enough funding to properly maintain and improve those roads,” Supervisor Mitzelfelt said. “As far as a process to prevent arbitrary closure of roads, such a provision exists in the settlement. But I fear the Park Service will simply go through the public process and consultations with the county and attempt to close roads anyway based on lack of funds.”

The Supervisor said he hopes that does not occur, and if it does it would be after his term of office. But if it does happen, “I hope the county will legally challenge any future road closures in the Mojave National Preserve.”

Supervisor Mitzelfelt said one favorable provision of the settlement is that the county will continue to own and maintain two roads on the edges of the Mojave National Preserve located on U.S. Bureau of Land Management property – Nipton Road and Goffs Road – under the county’s normal regulatory regimen for road maintenance in the area.