Dale Bumpers

Mr. BUMPERS

Mr. BUMPERS. I am very amenable, I say to the Senator. I would suggest a 20-minute time limit on the remainder of this amendment equally divided.

Mr. BUMPERS. The Senator has no right to complain. He says to the Secretary, ``No, no, no.'' He should not come to this floor squawking, because he stopped the Secretary from trying to come up with some kind of a sensible rule. So, in 1997, and I have been trying to get to this for about 15 minutes, here is the policy that the Secretary of the Interior issued. It is a good, sane, sensible policy. If the Stevens amendment on this bill stays in, he torpedoes this policy of 1997, and we go back to the abomination called the Hodel rule. Now, you choose. If you think the Hodel rule was right--as I say, by moving a few stones, mowing a little grass, anything to try to make it look like you have been doing a little construction, or you listen to the policy developed by Secretary Babbitt, and here is the first item: An entity wishing the Secretary or any agencies of the Department of Interior to make a determination as to whether R.S. 2477 right-of-way exists shall file a written request with the Interior agency having jurisdiction over the lands underlying the asserted right-of-way, along with an explanation of why there is a compelling and immediate need for such a determination. Surely, nobody objects to that. The request should be accompanied by documents and maps that the entity wishes the agency to consider in making its recommendations to the Secretary. If, based on the information provided, the agency does not believe a compelling and immediate need for the determination exists, it should, without further examination, recommend the Secretary defer processing until final rules are effective. That is the policy, ``until final rules are effective,'' and there is absolutely nothing wrong with that. No. 2, ``The agencies shall consult the public land records, maintained by BLM to determine the status of the lands over which the claimed right-of-way passes. If such lands were withdrawn''--that means the Federal Government took the lands out and made a wilderness area of them, or a national park or some other Federal purpose; that is what is called reserving the lands--``if they determine that these lands have been withdrawn by the Federal Government or otherwise made unavailable pursuant to R.S. 2477 at the time the highway giving rise to the claim was allegedly constructed and remained unavailable through October 21, 1976, the agencies will recommend the Secretary deny the claim.'' Now, all that says is, if this was not a claim for an existing right- of-way prior to the time we repealed R.S. 2477, it should be denied. Nobody would argue with that. That is the reason we repealed R.S. 2477, was to stop the nonsense. No. 3, ``If the lands were not withdrawn, reserved or otherwise available''--now, that means that the Federal Government had not taken the land and used it for some other purpose such as a national park, ``the agency will examine all able documents and maps and perform an on-site examination to determine whether construction on the alleged right-of-way had occurred prior to the repeal of R.S. 2477 on October 21, 1976.'' Again, the agency will deny the claim if it had not been a right-of- way prior to the repeal of 2477. No. 4, Highway: ``The agency shall evaluate whether the alleged right-of-way constitutes a highway.'' Here is the key to this whole thing. ``A highway is a thoroughfare used prior to October 21, 1976.'' That is the date of the repeal. An alleged right-of-way constitutes a highway if it was a thoroughfare prior to the repeal of 2477. If the agency determines that the alleged right-of-way does not constitute a highway, the agency will deny the claim. Why shouldn't they? That is the reason we repealed it. We don't want any claims coming in on highways that were not in existence at the time we repealed the law.

Mr. BUMPERS. Yes.

Mr. BUMPERS. Let me answer the question this way, Senator. I did not hear a single soul complain when Donald Hodel established his policy in 1988. It is only the Babbitt policy of 1997 that seems to be objectionable. There is no question, if you want to raise the question about the authority of the Secretary to issue a policy, if Secretary Hodel has the right to issue a policy, why does his successor, Bruce Babbitt, in 1997, not have the right to reverse that policy? Let me go ahead and say that the Senator quoted the Hodel policy correctly, but he did not go quite far enough. Here is what Donald Hodel's policy said about the requirements needed to prove what constitutes construction of a highway: ``Construction is a physical act of readying the highway for use by the public according to the available or intended mode of transportation, foot, horse, vehicle, et cetera.'' Horse--that is right--vehicle, foot, those all constitute highways. His policy goes on to say, here are some examples of what constitutes construction of a highway: ``removing high vegetation.'' Go out and cut the weeds, it becomes a highway. ``Move a few large rocks out of the way,'' it becomes a highway, or ``filling in low spots''--all of those may be sufficient to show construction for a particular use. Now, Senator, let me ask you a question, does that make any sense to you?

Mr. BUMPERS. Mr. President, I had a Senator ask me earlier if I felt that I was right about this amendment. Let me answer that question for any Senator who would ask the same question. I have never felt more comfortable with a position in my life than I do on this. It has nothing to do with Alaska or Utah or Idaho. What it has to do with is saying this language of the senior Senator from Alaska, No. 1, has no business in this bill; No. 2, if it did, it is a terrible amendment; No. 3, men and women of good will could sit down and work out a sensible policy for the Department of the Interior and require them to report back to us with regulations or something else. But under the existing law, what the amendment of the Senator from Alaska does is to return the determination of whether these thousands and hundreds of thousands of miles of claimed rights-of-way constitute a highway within the definition of the Hodel policy. It is a question of whether or not we are going to allow rights-of-way simply because they were claimed to be there before 1976 when we repealed R.S. 2477, whether we are going to allow the use of those rights-of-way to cross wilderness areas, national parks, monuments, all kinds of protected Federal areas. I submit to you that the people of this country, if they knew the substance of this debate, that we were actually considering the Stevens amendment to this bill, if they knew what the implications of that were, they would be up in arms. I cannot believe--not to denigrate my good friends from these Western States who have a deep and abiding interest, an understandable and deep and abiding interest, in this issue--I cannot believe that more than 3 percent of the people of this country would condone granting applications for highways across these areas because there was some kind of a footpath or a trail or something else, even vegetation that had been tromped down. Under the Hodel policy in 1988, Donald Hodel had a policy that said: If you have cut high vegetation, you had a lot of weeds and you cut them down, that constitutes a highway. Have you ever heard anything as ridiculous as that in your life?

Mr. BUMPERS. Mr. President, I reclaim the floor. We ought to pin a Medal of Freedom on Bruce Babbitt.

Mr. BUMPERS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BUMPERS. Mr. President, I will not belabor the points that have been made time and again here. Mr. President, I suggest the absence of a quorum.

Mr. BUMPERS. He revoked a policy that said any time you mow high weeds, apply to us and we will give you a right-of-way to build a four- lane highway over that footpath. Move a few rocks out of the way, we will consider that a highway and allow you to build on it. Fill in a few low spots, we will make it a highway and you build it. Even if it is across a national park or across a wilderness area or across a national monument, a historic area that we have set aside. Can you think of anything more insane than giving States the right to build highways across Federal lands no matter where they are, simply because somebody mowed some high weeds or because somebody moved a few rocks? While I am at it, Senator, before I get into it with you, let me also point out, here is the Babbitt policy. This is the policy that reversed the 1988 Hodel policy. I want you to listen to this. I have a letter from Bruce Babbitt in which he says he will urge the President to veto this bill if the Stevens amendment is not taken out of it. I ask unanimous consent to have that printed in the Record.

Mr. BUMPERS. Now, Mr. President, I hate to read to my distinguished colleague, but it will be helpful to clarify the record about this ``terrible'' Babbitt policy. He did not think it was a good idea to allow the States to come in here and claim a right-of-way simply because somebody moved a few rocks out of the way no matter where it was located.

Mr. BUMPERS. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

Mr. BUMPERS. Yes. Privilege of the Floor

Mr. BUMPERS. Mr. President, I ask unanimous consent that the Reid amendment be temporarily set aside while I offer an amendment.

Mr. BUMPERS. I understand that our side needs to check. We have people coming and going. I assume that is what the Senator has concern about.

Mr. BUMPERS. Mr. President, for Members of this body who have not dealt with this issue on the Energy and Natural Resources Committee, this is a slightly complex amendment. I am going to simplify it as best I can. We have had several hearings in the Energy Committee on it, but it deals with an issue that sounds so bizarre you would not believe it was actually on the statute books of this country. In 1866, Congress passed a bill which has become popularly known as R.S. 2477, Revised Statute 2477. What that law did, as part of the 1866 mining law, was to validate public highways built across unreserved public lands. That does not mean much, so here it is. The United States owns 350 million acres of land in the lower 48 States. Since 1866, we have set aside millions and millions of acres in wilderness areas, national parks, monuments, all kind of things since 1866. But bear in mind, the R.S. 2477 statute said ``unreserved lands,'' so that meant all of the public lands the United States owns that have not been set aside for another purpose. The effect of that, of course, was, from 1866 until 1976 when it was repealed, anybody who claimed a footpath, almost a cow trail, a sled trail, hiking trails, almost anything would qualify as a highway under the language in this bill. A lot of highways were built under these R.S. 2477 rights-of-way between 1866 and 1976, and we are not contesting a single one of those. What we are saying is, the provision put in this bill by the Senator from Alaska [Mr. Stevens] simply says we are going to let State law determine what is and is not a public, valid right-of-way. This, admittedly, is primarily an Alaska, Utah, and probably Idaho issue. It does not affect my State. There are some of the Western States that have these rights-of-way. But in any event, here is what the law said as we passed it in 1866. ``[T]he right-of-way for the construction of public highways across public lands, not reserved for public uses, is hereby granted.'' As I say, that includes dogsled trails, that includes footpaths, it includes any kind of a path. And there are literally thousands and thousands of them that have been claimed. Mr. President, I will come back to how the language in this bill will work in just a moment. But listen to this. The State of Alaska has passed a law making every section line in Alaska a right-of-way and subject to having a highway built on it. I am reluctant to say this, but if you build on just half the rights-of-way that Alaska is claiming, you would not be able to travel. There would be too many roads to get around. In any event, I want to make it crystal clear that this amendment has nothing to do with existing highways that have been built under the 1866 law. Mr. President, there have never been regulations crafted to deal with this issue. In the 1930's there was sort of a half-hearted regulation, but not really anything. Mr. President, I suggest the absence of a quorum.

Mr. BUMPERS. I yield.

Mr. BUMPERS. There will not be a second degree.

Mr. BUMPERS. And this will all begin when? The first vote will take place at----

Mr. BUMPERS. Senator, let me answer that by saying the fact that Alaska was, until recently, a frontier State, as was all of the West not too many years ago. To suggest that simply because the West was settled by pioneers who made wagon tracks or where they had footpaths where they tried to get to the West, to suggest that all of those routes across Federal lands--let me finish, sir.

Mr. BUMPERS. Now, Mr. President, I want to make another point crystal clear, and it is this: When I said a moment ago that the effect of this amendment would allow State law to determine what constitutes a valid existing right-of-way, it would take away the Secretary of the Interior's ability to determine what was a highway. In short, all of these thousands and thousands of so-called R.S. 2477 right-of-way claims all over the West would become valid. Now, bear in mind, there is another facet to this, and that is the Secretary in January of this year set out a policy which effectively repealed a policy established by Donald Hodel when he was Secretary of Interior in 1988. The Hodel policy--it is not a regulation; we have never had a rule or regulation, it was simply a policy statement--was that just about anything could qualify as a highway. Now, whether the Hodel policy stated that the States shall have exclusive rights to determine what a right-of-way is, I do not really know right now, but I can tell you, if section 310 passes, State law will determine what is going to happen to thousands of rights-of-way in this country that cross national parks, wilderness areas, monuments, and any other land in the West that was set aside after these claimed rights-of-way existed. Let me give an example. Assume that there are 20 rights-of-way that the State of California would claim cross Yosemite National Park. They claim those rights-of-way were established before Yosemite became a national park. It was unreserved Federal land before, and these rights- of-way were across that Federal land. Later on, we establish Yosemite National Park. Under this section, if the Stevens language stays in this bill, which has absolutely no business being in this bill, but if my amendment is defeated, that means that California law will dictate what highways can be built across Yosemite National Park--not the National Park Service, not the Federal Government, but the State of California. Think of all the thousands of rights-of-way that could be claimed in Alaska. Mr. President, just for openers, here are some of the claims that have been filed. These are not all the claims that Alaska, Utah, Idaho, and other States have as to what constitutes a valid right-of- way. These are the ones that have actually been filed with the Secretary of Interior and requested to be declared an existing valid right-of-way on which they can build a four-lane superhighway, if they desire. Alaska has 256 claims on file, but they have God knows how many--thousands that they could claim. Idaho has 2,026 on file, and Utah has 6,173 claims filed in the Secretary's office. Those are a lot of potential highways across Federal lands, and the Federal Government could not stop them no matter what kind of highway they wanted to build. When I started off telling you how bizarre this was, just think about that. When we held our first hearing in the Energy Committee on what to do about these so-called R.S. 2477 rights-of-way, I may have been dense, but it took me a long time to understand that we were really talking about something serious. I never heard of anything so bizarre in my life. Yet, the chairman of the Appropriations Committee--we all represent our States, and I am not holding him guilty of anything. I am just saying the rest of us do not have to follow suit. He is chairman of the committee and he puts this in a supplemental appropriations bill designed to aid areas hurt by natural disasters, including help for the people of Arkansas. There is $6.5 million for debris removal in streams as a result of a tornado on March 1 in Arkansas. There is $3.5 million in this bill to allow an all-black community just outside Little Rock to tie into the Little Rock sewer system. Virtually the entire community of College Station was wiped out, a community of less than 500 people, and they cannot build new homes or borrow money to build new homes until they get on the sewer system. And the chairman, very graciously, and the committee, very graciously, accepted my amendment to put $3.5 million in there to accomplish that. How many nights did we look at the Dakotas and Minnesota, which was a veritable lake? Mr. President, do you know the name of the bill we are considering? It is the emergency supplemental appropriations bill. The R.S. 2477 issue is no emergency. The language I am trying to strike was put in there and it had nothing to do with any kind of disaster or emergency. It was put in there to accommodate primarily the States of Alaska, Utah, and Idaho. I have nothing against any of those States, but I tell you what I do have, I do have a strong feeling about protecting the citizens of this country and the Federal lands which they all own. Some of it is in my State--admittedly, not as much as in Alaska and some Western States--but every single Member of the U.S. Senate has a solemn obligation, occasionally, to stand on their hind legs and say no to such things as this. Every Senator has or will have a letter on his desk from Secretary Babbitt saying he will strongly urge the President to veto this $8 billion bill if this provision is left in it. Why wouldn't he? My point is, why are we, U.S. Senators, holding the people of North Dakota, South Dakota, and Minnesota hostage to an amendment that should not be on this bill? It is not an emergency. It is not even an appropriations measure. Mr. President, I get terribly exercised about things like this because I think I have a solemn duty to bring this to the attention of the Senate. In January of this year, Secretary Babbitt, not popular with Western Senators--but that has nothing to do with this amendment. What it does have to do with this amendment is whether or not we are going to allow every single State who can identify a pig trail that was used by human occupants any time between 1866 and 1976, across lands that have subsequently been made national parks, monuments, and wilderness areas, whether we are going to allow those States to determine that those trails are now highways and then build highways on them with no input from the Secretary. So Secretary Babbitt, in January of this year, issued a policy--not a rule, not a regulation, but a policy. Here is what his policy said. It defines a highway to be ``a thoroughfare used by the public for the passage of vehicles carrying people or goods.'' Now, Secretary Babbitt's policy also allows for the abdication of State law to the extent consistent with Federal law, which, of course, makes Federal law dominant, as it should be. Nobody is trying to punish Alaska. Nobody is trying to punish Idaho. Nobody is trying to punish Utah. What we are trying to do is say these sacred parks and monuments that we have developed over the years-- Yellowstone, Yosemite, Bryce Canyon, Saguaro, you name it--you cannot let the States just walk in and willy-nilly start building highways across those places. If you do not vote for my amendment, that is precisely what you are voting for. Mr. President, I hope the Senate will pay attention to this issue--as I say, this is an arcane issue. Most people in this country do not have a clue that a law such as R.S. 2477 ever existed. I want to get help to the people of my State who have been devastated by tornadoes. I want to get help to people in California who have suffered from floods, to the Dakotas and Minnesota, one of the most awesome things we have ever watched on television. This bill is designed to help them. That is what a compassionate, caring government does. One of the reasons I voted against the constitutional amendment to balance the budget is because it would have prohibited the Congress from appropriating money to help people who had suffered that kind of disaster because it would unbalance the budget. You could not do it without a 60 percent vote of both Houses, and if you did not get it, they just suffered. That is what would happen a lot of times. I am not going to belabor this. I have made the point as well as I can. I see the junior Senator from Alaska on the floor. I yield the floor.

Mr. BUMPERS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BUMPERS. I have to make this point one more time. The Senator talks about Don Hodel consulting with everybody. Bruce Babbitt had 3,000 comments from the public. Why is it that Don Hodel with a few Republican Senators and Congressmen around him developed a policy--why was that so wonderful with a few people sitting behind a closed door to decide the policy, and Bruce Babbitt gets 3,000 comments? And what happens? The first thing that happens is an amendment on an emergency supplemental, which has absolutely no business being there, to stop him from implementing a ruling. Three thousand people have commented on it. It just depends on whose ox is being gored. We all know that.

Mr. BUMPERS. Mr. President, let me just say this to the Senator from Alaska. It isn't often that I say this. But when I read the Senator's comment on this emergency supplemental and I realize what the effect of it would be, for once in my life thank God for the supremacy of the Federal Government. I yield the floor. Mr. MURKOWSKI addressed the Chair.

Mr. BUMPERS

Mr. BUMPERS. I suggest the absence of a quorum.

Mr. BUMPERS. Mr. President, in 1866, Congress passed a mining law called Revised Statute 2477. Here is what it said: The right-of-way for the construction of public highways across public lands, not reserved for public uses, is hereby granted. That was the law until 1976 when we repealed it. And we repealed it because there are literally thousands and thousands of potential rights-of-way, which the States could claim for purposes of building a highway across Federal lands. In 1988, Donald Hodel, who was the Secretary of the Interior at the time, established a policy. Listen to this: Under that policy, a right-of-way could be established by mowing high vegetation, by moving a few rocks, by filling in low spots. The State of Alaska has passed a law making every section-line in the State a right-of-way, over 900,000 miles. Here is the kicker, Mr. President. These rights-of-way would cross national parks, wilderness areas, national monuments, and other protected areas. These highways cross all of those areas that we have since taken out of the public domain and made national parks and other reserved areas. If we don't pass this amendment, every State--but particularly Alaska, Utah, and Idaho--will have the right to build roads on every one of those claimed rights-of-way, according to the language of the Stevens amendment. This issue is not an emergency. To hold the people in the Dakotas and Arkansas and other States hostage for something as foolish as this is, would be foolish in the extreme.