Congress, keep the West wild — or at least what’s left of it

It is hard to blame someone for being nostalgic about the Wild West. The wagon trains, the boomtowns, the Pony Express, and the gunslingers hold a special place in the American imagination. Although it was a period of great cruelty — in particular toward Native Americans brutally dispossessed of their land — it was also one of remarkable courage, innovation, and achievement.

But sometimes nostalgia can go too far. That, unfortunately, is the case with the proposed Historic Routes Preservation Act, S. 468 and H.R. 3270. Far from “preserving” anything, this legislation would likely ruin what little we still have of the wild West, from open landscapes to rugged communities to truly wild animals.

{mosads}In 1866, Congress enacted legislation to encourage any and all road building across the West as a way to unite people. That may have been necessary in the early days of the Wild West, when small frontier towns were isolated from one another. But times have changed, and so has the West.

Today, we face more and more development and less and less open space. When a road slices through a pristine area of natural wilderness, it does not bring us together — it tears us apart. It endangers wildlife, it mars hiking and camping experiences, it splits up mutually dependent ecosystems, and it facilitates a host of other destructive activities.  

In 1976, Congress and President Ford recognized the old statute was outdated. They replaced it with a more modern approach to determining which additional roads were truly needed, balancing commercial needs with the importance of protecting rapidly shrinking natural areas. That system worked well for decades. This new legislation would bypass that system and bring back the seamiest side of the Wild West.  

Any rights of way genuinely granted under the 1866 law either have long ago been built or have laid idle for more than four decades. This legislation is not about preserving legitimate rights of way or anything else: It is an open license for those wanting new roads through wild areas to concoct claims on the flimsiest pretext.

The Wild West was also an era of tall tales. Gunslingers would falsely claim to have been sheriffs or marshals of other frontier towns and would sell “the gun” they used in a famous fight many times over. This legislation all but invites developers wanting to build roads across federal lands to treat us like patsies in the old gold-painted brick scam.

The legislation bars federal agencies from calling out crooked dealers by declaring these claims “conclusively verified, proven, and established” if the claimant can cook up specified kinds of highly dubious “evidence.” It explicitly allows any and all hearsay to be treated as probative, even dispositive evidence. It defines acceptance of a road by a state or local government to include “construction” of that road, but then defines “construction” to include “mere usage.” If Wyatt Earp rode his horse somewhere while pursuing outlaws, the legislation says he was creating a road on his path. That is obviously absurd.

The law also treats any map showing a road that is “kept” by a library as conclusive evidence. So all I have to do is draw the road I want on a map, include it in a pile of books I donate to a public library somewhere, and if they do not affirmatively throw it out, I have the evidence I need to build a road on public lands for free. Even the worst of the Wild West claim jumpers would have blanched at the thought.

Indeed, the legislation is likely to bring back another feature of the Wild West: the gamblers’ bluff. (Wyatt Earp, Bat Masterson, and other famous gunslingers were gamblers first and foremost.)

With all claims automatically granted unless the Department can find an error within 120 days, even those with claims too weak to meet the legislation’s feeble evidentiary standards can file anyway. With a flood of applications, and the Department’s staff shrunken by the effects of sequestration and continuous pressure on domestic discretionary appropriations, even absurd claims have a good chance of sliding through unchallenged. And although the law would allow developers to challenge any denials in court, it would close the courthouse door on anyone that a proposed road might harm.

Desperately poor people who are unable to work must wait months or years to have an understaffed Social Security Administration scrutinize their claims for disability benefits. Any suggestions that the process be expedited, or that benefits be provided on less than air-tight evidence, would be derided as an irresponsible give-away of public funds. Yet when it comes to despoiling irreplaceable public lands, this legislation lets responsible stewardship blow away like tumbleweed.

Wyatt Earp was never injured in all his fights. If this bill passes, our precious public lands will be far less fortunate.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.

The views expressed by contributors are their own and not the views of The Hill.