Anyone who likes to go out into the hills is well aware that the biggest problem with public lands here in Idaho is that you cannot get there. A typical problem is somebody buys land that straddles an old road and promptly fences the road and blocks the access to adjoining public lands. Actually the situation is rather simple. If the road existed before 1976 and before the land became privately owned, the road is called an RS2477 road and if it is closed by any subsequent owner, the closure is illegal for the simple reason that the law states that only congress has the authority to close an RS2477 road.
The BLM as a government agency routinely closes roads illegaly, showing once again that agencies of the Federal Government routinely ignore existing law. If one bothers to read both the Federal and the State of Idaho definitions of RS 2477 roads, you find that such roads are any trail, wagon road, or other route once used to convey people and goods and that such roads do not have to be maintained, they simply exist until closed by Congress. In the case of the BLM, the passage of the law called FLPMA (pronounced flipma) provided that any "road" that existed prior to 1976 was to remain an RS 2477 road.
The Forest Service is a different ball of wax. National Forest Land is not public land. In the case of the Forest Service, if the road existed prior to the land becoming National Forest Land, then legally it is an RS 2477 road also, a fact the Forest Service bitterly opposes as we all saw down at Jarbidge a few years ago. Where the road controversy regarding private lands originates is that there has never been a clear cut court decision regarding the fact that gaining a patent to a piece of land does not cancel the RS2477 road.
Back in the early pioneer days Joe Sianthead, pioneer, drove his team up a road that followed a stream valley and meadows, said to himself that was a neat place to settle, put his stakes in the ground and proceeded to prove up a homestead. Legal opinions this writer has elicited state, as one would expect, that getting a patent from the land office years ago does not extinguish the road.
Some counties, Bingham County here in Idaho for example, are very aggressive in preserving RS 2477 roads as public roads. Other counties go limp on this issue, usually to cater to some politically powerful ranching or hunting club interests. As a result, with homesteads patented all over the bottom lands, it is impossible for the average person to reach the public lands.
San Bernardino County in California is probably the most aggressive county in the western US in the matter of declaring RS2477 roads public. They are doing so with vast numbers of such roads. Interestingly Bingham County did enough research to find out that if the mail was ever carried on a road, the road is a public road forever.
There is also a special situation in Idaho law that protects the ability of a miner to access his mining property. The mine owner has the right in Idaho to file a condemnation case against any private owner blocking his access, and the mine owner gets to choose the route.
What will finally solve the issue is not a batch of little lawsuits involving innumerable private owners and highway districts, but a clear cut decision by the Idaho Supreme Court that RS 2477 roads remain public roads regardless of what Johnny-Come-Lately private owner wants to close them. Only congress has the authority to do so.
Incidently, in the early 1900s the Cassia County Commissioners passed a county ordinance that allowed all section lines to become public roads. Allowing old roads to be closed makes new road less areas that can then be made into wilderness or wild areas, something that Idaho already has too much of.
Carl F. Austin A Goose Creek rancher, geothermal explorationsist and a lot of other things