Full opinion text
McCONNELL, Circuit Judge. This case involves one of the more contentious land use issues in the West: the legal status of claims by local governments to rights of way for the construction of highways across federal lands managed by the Bureau of Land Management (BLM). In 1866, Congress passed an open-ended grant of “the right of way for the construction of highways over public lands, not reserved for public uses.” Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy Management Act of 1976 (FLPMA), Pub.L. No. 94-579 § 706(a), 90 Stat. 2743. This statute, commonly called “R.S. 2477,” remained in effect for 110 years, and most of the transportation routes of the West were established under its authority. During that time congressional policy promoted the development of the unreserved public lands and their passage into private productive hands; R.S. 2477 rights of way were an integral part of the congressional pro-development lands policy. In 1976, however, Congress abandoned its prior approach to public lands and instituted a preference for retention of the lands in federal ownership, with an increased emphasis on conservation and preservation. See FLPMA, 43 U.S.C. § 1701 et seq. As part of that statutory sea change, Congress repealed R.S. 2477. There could be no new R.S. 2477 rights of way after 1976. But even as Congress repealed R.S. 2477, it specified that any “valid” R.S. 2477 rights of way “existing on the date of approval of this Act” (October 21, 1976) would continue in effect. Pub.L. No. 94-579 § 701(a), 90 Stat. 2743, 2786 (1976). The statute thus had the effect of “freezing” R.S. 2477 rights as they were' in 1976. Sierra Club v. Hodel, 848 F.2d 1068, 1081 (10th Cir.1988), overruled on other grounds by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 971 (10th Cir.1992) (en banc). The difficulty is in knowing what that means. Unlike any other federal land statute of which we are aware, the establishment of R.S. 2477 rights of way required no administrative formalities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested. As the Supreme Court of Utah noted 75 years ago, R.S. 2477 “ ‘was a standing offer of a free right of way over the public domain,’ ” and the grant may be accepted “without formal action by public authorities.” Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1929), (quoting Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901)). In its Report to Congress on R.S. 24,77: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands 1 (June 1993), the Department of the Interior explained that R.S. 2477 highways “were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal land under this authority.” To make matters more difficult, parties rarely had an incentive to raise or resolve potential R.S. 2477 issues while the statute was in effect, unless the underlying land' had been patented to a private party. If someone wished to traverse unappropriated public land, he could do so, with or without an R.S. 2477 right of way, and given the federal government’s pre-1976 policy of opening and developing the public lands, federal land managers generally had no reason to question use of the land for travel. Roads were deemed a good thing. Typical was the comment by the great nineteenth-century Michigan jurist, Thomas Cooley, that “[s]uch roads facilitate the settlement of the country, and benefit the neighborhood, and in both particulars they further a general policy of the federal government. But they also tend to increase the value of the public lands, and for this reason are favored.” Flint & P.M. Ry. Co. v. Gordon, 41 Mich. 420, 2 N.W. 648, 653 (1879). Thus, all pre-1976 litigated cases involving contested R.S. 2477 claims (and there are dozens) were between private landowners who had obtained title to previously-public land and would-be road users who defended the right to cross private land on what they alleged to be R.S. 2477 rights of way. Now that federal land policy has shifted to retention .and conservation, public roads and rights of way in remote areas appear in a different light. Some roads and other rights of way are undoubtedly necessary, but private landowners express the fear that expansive R.S. 2477 definitions will undermine their private property rights by allowing strangers to drive vehicles across their ranches and homesteads. Conservationists and federal land managers worry that vehicle use in inappropriate locations can permanently scar the land, destroy solitude, impair wilderness, endanger archeological and natural features, and generally make it difficult or impossible for land managers to carry out their statutory duties to protect the lands from “unnecessary or undue degradation.” FLPMA § 302(b), 43 U.S.C. § 1732(b). They argue that too loose an interpretation of R.S. 2477 will conjure into existence rights of way where none existed before, turning every path, vehicle track, or dry wash in southern Utah into a potential route for cars, jeeps, or off-road vehicles. For their part, the Counties assert that R.S. 2477 rights of way are “major components of the transportation systems of western states,” and express the fear that federal land managers and conservationists are attempting to redefine those rights out of existence, with serious “financial and other impacts” on the people of Utah. Kane and Garfield County (K & G C.) Rep. Br. 21. Thus, the definition of R.S. 2477 rights of way across federal land, which used to be a non-issue, has become a flash point, and litigants are driven to the historical archives for documentation of matters no one had reason to document at the time. I. FACTUAL AND PROCEDURAL BACKGROUND In September and October of 1996, road crews employed by San Juan, Kane, and Garfield Counties entered public lands managed by the BLM and graded sixteen roads (or “primitive trails,” as the BLM calls them) located in southern Utah. The Counties did not notify the BLM in advance, or obtain permission to conduct their road grading activities. With a few possible exceptions, none of these roads had previously been graded by the Counties, though some of them showed signs of previous construction or maintenance activity. The roads are claimed by the Counties as rights of way under R.S. 2477; some of them are listed on County maps as Class B or Class D highways. Six of the routes lie within wilderness study areas. Nine are within the Grand Stairease-Escalante National Monument. Six others traverse.a mesa overlooking the entrance corridor to the Needles District of Can-yonlands National Park. According to the Complaint filed by a consortium of environmental organizations including the Southern Utah Wilderness Alliance (hereinafter collectively referred to as “SUWA’.’), the areas affected by the Counties’ road grading activities “contain stunning red-rock canyon formations, pristine wilderness areas, important cultural and archeological sits [sic], undisturbed wildlife habitat, and significant- opportunities for hiking, backpacking and nature study in an area largely undisturbed by road or human ... development.” SUWA protested to the BLM, but these initial protests resulted in no apparent action against the road grading actions of the Counties. In October of 1996, SUWA filed suit against the BLM, San Juan County, and later Kane and Garfield Counties, alleging that the Counties had engaged in unlawful road construction activities and that the BLM had violated its duties under FLPMA, 43 U.S.C. § 1701 et seq., the Antiquities Act, 16 U.S.C. § 431 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., by not taking action. The complaint sought declaratory and injunctive relief requiring the BLM to halt the Counties’ construction activities and enjoining the Counties from further road construction or maintenance without the BLM’s permission. The BLM filed cross-claims against the Counties, alleging that their road construction activities constituted trespass and degradation of federal property in violation of FLPMA. In addition to declaratory and injunctive relief, the BLM sought damages to cover the cost of rehabilitating the affected areas. The Counties defended on the ground that their road improvement activities were lawful because the activities took place within valid R.S. 2477 rights of way. The district court acknowledged that “the validity and scope of the claimed rights-of-way [were the] key to resolving the trespass claims,” Memorandum Decision of May 11, 1998 at 3, but it also concluded that binding Tenth Circuit precedent required that “the initial determination of whether activity falls within an established right-of-way ... be made by the BLM and not the court.” Id. at 3 (quoting Hodel, 848 F.2d at 1084) (internal quotation marks omitted). It therefore stayed the litigation and referred the issue of the validity and scope of the claimed rights of way to the BLM. Although the Counties requested a ruling on “how the ‘findings’ of the [BLM] [would] be utilized” and “the weight [the] court may give such findings,” the district court declined, stating that the weight it would give the BLM’s findings was “not presently at issue.” Memorandum Decision of August 6, 1998, at 2-3. The BLM then conducted a thorough informal adjudication of the Counties’ purported rights of way. It first issued an instructional memorandum describing the process it would use to determine the validity and scope of the Counties’ asserted rights of way. The memorandum included a general description of the evidence the BLM was seeking: evidence that the subject lands “were withdrawn, reserved or otherwise unavailable pursuant to R.S. 2477,” evidence of “construction” (undefined), and evidence that the claimed right of way was a “highway” (defined as “a thoroughfare used ... by the public for the passage of vehicles carrying people or goods from place to place”). The BLM then sent letters to the Counties, requesting that they “provide ... any and all information or evidence (i.e., documents, maps, etc.) believed to be relevant to the validity or scope of the R.S. 2477 claims.” It also published public notices seeking “any information believed to be relevant” to the Counties’ R.S. 2477 claims. The BLM then reviewed a variety of documents, including U.S. and county public land records and surveys, maps and aerial photography, wilderness inventory records, and BLM planning, grazing and maintenance records. It also conducted field investigations of each disputed route with representatives of the Counties and SUWA. In April of 1999, the BLM issued draft determinations for review and comment, and in July of 1999 and January of 2000, it issued final administrative determinations, concluding that the Counties lacked a valid right of way for fifteen of the sixteen claims, and that Kane County had exceeded the scope of its right of way in the sixteenth claim, the Skutumpah Road. SUWA then filed a motion for summary judgment in the district court seeking enforcement of the BLM’s administrative determinations. In response, the Counties sought to introduce evidence in addition to that contained in the administrative record, arguing that the district court should treat the BLM’s determinations merely as discovery evidence on de novo review. The district court disagreed. It stated that “[r]eviews of agency action in the district courts must be processed as appeals,” and therefore characterized SUWA’s motion not as a request for summary judgment but as an appeal of informal agency adjudication. Southern Utah Wilderness Alliance v. Bureau of Land Management, 147 F.Supp.2d 1130, 1135 (D.Utah 2001) (emphasis in original) (quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994)). Accordingly, the court limited its review to the administrative record and applied the arbitrary and capricious standard of review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), as construed by this Court in Olenhouse. Id. at 1134-36. The district court affirmed the BLM’s determinations in their entirety, concluding that the BLM’s factual determinations were supported by substantial evidence in the record and that its interpretation of R.S. 2477 was persuasive under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Id. at 1137. The Counties appealed, and we dismissed their initial appeal for lack of jurisdiction, Southern Utah Wilderness Alliance v. Bureau of Land Management, 69 Fed.Appx. 927, 929-31 (10th Cir.2003), concluding that the district court’s order was not final because it did not rule on the parties’ requests for injunctive relief and damages. On remand, the district court entered a final order granting the requests of SUWA and the BLM for declaratory judgment and denying all other requests for relief. Order of February 23, 2004 at 1-19. The Counties again appeal. II. JURISDICTION AND STANDING This Court has jurisdiction under 28 U.S.C. § 1291. The district court’s order of February 23, 2004 constituted a final judgment, resolving all issues outstanding in the case. San Juan County argues that SUWA lacks standing to challenge the Counties’ purported rights of way. We need not address this issue, however, because the BLM, which does have standing, has raised the same claims and sought the same relief as SUWA, both here and before the district court. A decision on SUWA’s standing, therefore, would in no way avoid resolution of the relevant issues. See Secretary of the Interior v. California, 464 U.S. 312, 319 n. 3, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984); California Bankers Ass’n v. Shultz, 416 U.S. 21, 44-45, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). III. TRESPASS CLAIMS AGAINST THE COUNTIES In its final order of February 23, 2004, the district court granted SUWA’s request for a declaration that: i. the Counties do not have R.S. 2477 rights-of-way on fifteen of the sixteen routes at issue in the court’s June 25, 2001 Order (that is, all routes except for the Skutumpah route in Kane County); and ii. Kane County’s construction work and/or proposed construction work on the Skutumpah route exceeded the scope of that right-of-way. Order of February 23, 2004 at 17. It also granted the BLM’s request for a declaration that: i. the Counties’ actions at issue in this case did not fall within any established right-of-way and were not authorized by the BLM; and ii. the Counties’ actions at issue in this case, on public land managed by the BLM without the BLM’s authorization, violated FLPMA and constituted “unauthorized use” trespass under applicable federal regulations. Id. at 18. These orders may be summarized as (1) a declaratory judgment that the Counties do not have R.S. 2477 rights of way on fifteen of the roads and exceeded the scope of the right of way on the Skutumpah road; and (2) a declaratory judgment that the Counties’ action in grading the roads constituted trespass. We turn first to the trespass issue and then to the issue of the validity and scope of the Counties’ R.S. 2477 claims. The BLM contends, as it did below, that the Counties’ actions in grading and realigning the roads in question without prior notice to or authorization from the BLM constituted trespass, whether or not the Counties have a valid R.S. 2477 right of way on those routes. Under BLM regulations in effect at the time of the alleged trespass, any use of federal lands that requires a right of way or other authorization and “that has not been so authorized, or that is beyond the scope and specific limitations of such an authorization, or that causes unnecessary or undue degradation, is prohibited and shall constitute a trespass.” 43 C.F.R. § 2801.3(a) (2004) (deleted April 22, 2005). The BLM contends that the Counties’ actions went beyond prior levels of maintenance, exceeded the authorized scope of prior rights of way (if any), and were performed unilaterally without consultation with federal land managers, and therefore that the Counties’ actions constituted trespass even on the heuristic assumption that they own a valid right of way. The district court rejected the BLM’s argument. According to the court, “[A]s long as [the] County stays within its right-of-way, the scope of which is to be defined using Utah law, BLM authorization is not required.” Memorandum Decision of October 8, 1997 at 19, ApltApp. Vol. 1 at 136. See also Memorandum Decision of May 11, 1998 at 2-3, ApltApp. Vol. 1 at 228-29 (“The United States originally argued that the road work activities of the Counties were unauthorized, whether or not the Counties held R.S. 2477 rights-of-way over the land in question. That premise has been rejected by the court. The court’s view is that the validity and scope of the claimed rights-of-way are key to resolving the trespass claims asserted by the United States.”). We, however, agree with the BLM, at least in part, and conclude that the holder of an R.S. 2477 right of way across federal land must consult with the appropriate federal land management agency before it undertakes any improvements to an R.S. 2477 right of way beyond routine maintenance. We remand this issue to the district court to determine whether the work performed on the routes in this case went beyond routine maintenance and thus constituted trespass. The trespass claim presents an issue of “scope,” which was litigated in this Court in Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988). In Hodel, the issue was whether Garfield County could convert a one-lane dirt road on an established R.S. 2477 right of way into a two-lane gravel (later paved) road. Applying a state law definition of the scope of the right of way, the Court held that improvements on a valid R.S. 2477 right of way are limited to those “ ‘reasonable and necessary for the type of use to which the road has been put.’ ” Hodel, 848 F.2d at 1083 (quoting Sierra Club v. Hodel, 675 F.Supp. 594, 606 (D.Utah 1987) (citing Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 649 (1929))). Relying on Nielson v. Sandberg, 105 Utah 93, 141 P.2d 696, 701 (1943), for the proposition that “an easement is limited to the original use for which it was acquired,” Hodel, 848 F.2d at 1083, the Court held that “the correct ‘reasonable and necessary’ definition fixed as of October 21, 1976.” Id. at 1084. In other words, the scope of an R.S. 2477 right of way is limited by the established usage of the route as of the date of repeal of the statute. That did not mean, however, that the road had to be maintained in precisely the same condition it was in on October 21, 1976; rather, it could be improved “as necessary to meet the exigencies of increased travel,” so long as this was done “in the light of traditional uses to which the right-of-way was put” as of repeal of the statute in 1976. Id. at 1083. The Hodel court also noted that “Utah adheres to the general rule that the owners of the dominant and servient estates ‘must exercise [their] rights so as not unreasonably to interfere with the other.’ ” Id. (quoting Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 158 (1946)). This requires a system of coordination between the holder of the easement and the owner of the land through which it passes. The Court thus concluded that the BLM needed to make an “initial determination” regarding the reasonableness and necessity of any proposed improvements beyond mere maintenance of the previous condition of the road. Id. at 1084-85. This approach was elaborated and applied in district court cases after Hodel. In United States v. Garfield County, 122 F.Supp.2d 1201 (D.Utah 2000), the court held, with reference to the same road at issue in Hodel, that any road construction within the National Park, beyond “maintenance,” would require advance notification of the Park Service and mutual accommodation between the Park Service and the County. Id. at 1246. In United States v. Emery County, No. 92-C-1069S, ¶ 6 (D. Utah, consent decree entered Dec. 15, 1992), litigation between a Utah county and the BLM was resolved by entry of a consent decree providing for advance notice to the BLM of any improvements beyond routine maintenance “so that both the County and the BLM may be satisfied that the proposed work on the R.S. 2477 highway is reasonable and necessary and that no unnecessary or undue degradation to the public lands would occur thereby.” These decisions are consistent with holdings of circuit courts that changes in roads on R.S. 2477 rights of way across federal lands are subject to regulation by the relevant federal land management agencies. See Clouser v. Espy, 42 F.3d 1522, 1538 (9th Cir.1994) (holding that “regardless whether the trails in question are public highways under R.S.[ ] 2477, they are nonetheless subject to the Forest Service regulations”); United States v. Vogler, 859 F.2d 638, 642 (9th Cir.1988) (holding that proposed improvements to an R.S. 2477 route in a National Preserve is subject to regulation by the National Park Service); see also United States v. Jenks, 22 F.3d 1513, 1518 (10th Cir.1994) (holding that the owner of a patent or common law easement across national forest lands had to apply for a special use permit). Relying on Hodel as well as common law principles governing easements, the Garfield County court stated, “Where rights-of-way and easements are concerned, one party cannot serve as the sole judge of scope and extent, or as the sole arbiter of what is ‘reasonable and necessary.’ ” 122 F.Supp.2d at 1242. “And ‘ordinarily ... no. material changes can be made by either party without the other’s .consent....’” Id. at 1243 (quoting 28A C.J.S. Easements § 173, at 391). The court concluded: Hodel instructs that “the initial determination of whether the activity falls within an established right of way is to be made by” the federal land management agency.having authority over the lands in question. 848 F.2d at 1085. For the agency to be able to make that determination, Garfield County needs to communicate its plans to the Park Service in a meaningful fashion, and in turn, the Park Service has a duty to evaluate those plans and make the initial determination contemplated by Hodel in a timely and expeditious manner. If the County disagrees with the agency’s decision, it may appeal or seek judicial review. ... Id. at 1243-44 (footnote omitted). Although Garfield County involved an R.S. 2477 right of way within a National Park, we see no reason why consultation of this sort is not equally required with respect to R.S. 2477 routes across BLM land. Cf. Clouser, 42 F.3d at 1538 (holding that National Forest Service had authority to forbid opening R.S. 2477 routes to motorized travel). The principle that the easement holder must exercise its rights so as not to interfere unreasonably with the rights of the owner of the servient estate, derives from general principles of the common law of easements rather than the peculiar status of National Parks.' See Jenks, 22 F.3d at 1518 (holding, under “basic principles of property law,” that easement rights are subject to regulation by the Forest Service as the owner of the servient estate). Just as the National Park Service has obligations to protect National Park land, the BLM has obligations to protect the land over which the roads at issue here pass. See FLPMA § 302(b), 43 U.S.C. § 1732(b) (“In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements [and] licences ... the use, occupancy, and development of the public lands”). Unless it knows in advance when right-of-way holders propose to change the width, alignment, configuration, surfacing, or type of roads across federal land, the BLM cannot effectively discharge its responsibilities to determine whether the proposed changes are reasonable and necessary, whether they would impair or degrade the surrounding lands, and whether modifications in the plans should be proposed. The Counties argue, in effect, that as long as their activities are conducted within the physical boundaries of a right of way, their activities cannot constitute a trespass. But this misconceives the nature of a right of way. A right of way is not tantamount to fee simple ownership of a defined parcel of territory. Rather, it is an entitlement to use certain land in a particular way. To convert a two-track jeep trail into a graded dirt road, or a graded road into a paved one, alters the use, affects the servient estate, and may go beyond the scope of the right of way. See Hodel, 848 F.2d at 1083 (“[s]urely no Utah case would hold that a road which had always been two-lane with marked and established fence lines, could be widened to accommodate eight lanes of traffic”); Jeremy v. Bertagnole, 101 Utah 1, 116 P.2d 420, 424 (1941) (“the use to which the way has been put measures the extent of the right to use”; “[a] bridle path abandoned to the public may not be expanded, by court decree, into a boulevard”). This does not mean that no changes can ever be made, but that any improvements must be made in light of the traditional uses to which the right of way had been put, fixed as of October 21, 1976. Hodel, 848 F.2d at 1084. The Counties are correct that, under Hodel, the right-of-way holder may sometimes be entitled to change the character of the roadway when needed to accommodate traditional uses, but even legitimate changes in the character of the roadway require consultation when those changes go beyond routine maintenance. Just because a proposed change falls within the scope of a right of way does not mean that it can be undertaken unilaterally- We note that the Utah legislature in 1993 enacted the Rights-of-Way Across Federal Lands Act, Utah Code Ann. § 72-5-303, which provides that “[t]he owner of an R.S. 2477 right-of-way and the owner of the servient estate shall exercise their rights without unreasonably interfering with one another.” Id. at § 72-5-303(2). This reflects a commendable spirit of mutual accommodation that should characterize the relations of levels of government in our federal system. Both levels of government have responsibility for, and a deep commitment to, the common good, which is better served by communication and cooperation than by unilateral action. See also Restatement (Third) of Property: Servitudes, § 4.10 cmt. a (1998) (“In the absence of detailed arrangements between them, it is assumed that the owner of the servitude and the holder of the servient estate are intended to exercise their respective rights and privileges in a spirit of mutual accommodation.”). We therefore hold that when the holder of an R.S. 2477 right of way across federal land proposes to undertake any improvements in the road along its right of way, beyond mere maintenance, it must advise the federal land management agency of that work in advance, affording the agency a fair opportunity to carry out its own duties to determine whether the proposed improvement is reasonable and necessary in light of the traditional uses of the rights of way as of October 21, 1976, to study potential effects, and if appropriate, to formulate alternatives that serve to protect the lands. The initial determination of whether the construction work falls within the scope of an established right of way is to be made by the federal land management agency, which has an obligation to render its decision in a timely and expeditious manner. The agency may not use its authority, either by delay or by unreasonable disapproval, to impair the rights of the holder of the R.S. 2477 right of way. In the event of disagreement, the parties may resort to the courts. In drawing the line between routine maintenance, which does not require consultation with the BLM, and construction of improvements, which does, we endorse the definition crafted by the district court in Garfield County: Defined-in terms of the nature of the work, “construction” for purposes of 36 C.F.R. § 5.7 includes the widening of the road, the horizontal or vertical realignment of the road, the installation (as distinguished from cleaning, repair, or replacement in kind) of 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 “improvement,” “betterment,” or any other change in the nature of the road that may significantly impact Park lands, resources, or values. “Maintenance” preserves the existing road, including the physical upkeep or repair of wear or damage whether from natural or other causes, maintaining the shape of the road, grading it, making sure that the shape of the road permits drainage [, and] keeping drainage features open and operable — essentially preserving the status quo. 122 F.Supp.2d at. 1253 (footnote omitted). Under this definition, grading or blading a road for the first time would constitute “construction” and would require advance consultation, though grading or blading a road to preserve the character of the road in accordance with prior practice would not. Although drawn as an interpretation of 36 C.F.R. § 5.7, which applies within national parks, the district court noted that: “This construction comports with the commonly understood meanings of the words, the pertinent statutes, agency interpretations, and the past experience of the parties on the Capitol Reef segment, including the experience leading up- to February 13,1996.” Id. We therefore find it applicable to distinguishing between routine maintenance and actual improvement of R.S. 2477 claims across federal lands more generally. Drawing the line between maintenance and construction based bn “preserving the status quo” promotes the congressional policy of “freezing” R.S. 2477 rights of way as of the uses established as of October 21, 1976. Hodel, 848 F.2d at 1081. It protects existing uses without interfering unduly with federal land management and protection. As long as the Counties act within the existing scope of their rights of way, performing maintenance and repair that preserves the existing state of the road, they have no legal obligation to consult with the BLM (though notice of what they are doing might well avoid misunderstanding or friction). If changes are contemplated, it is necessary to consult, and the failure to do so will provide a basis for prompt injunctive relief. “Bulldoze first, talk later” is not a recipe for constructive intergovernmental relations or intelligent land management. The record is not sufficient to determine whether the work performed by the Counties in the Fall of 1996 was routine maintenance or construction. On remand, therefore, the parties should be permitted to introduce evidence relevant to the question of trespass, as defined in this opinion. IV. PRIMARY JURISDICTION OVER R.S. 2477 RIGHTS OF WAY We turn now to the district court’s holding" that none of the fifteen contested routes falls within a valid R.S. 2477 right of way. We address first the question of whether the district court should have treated this dispute as an appeal of an informal, but legally binding, administrative adjudication, or instead should have treated it as a de novo legal proceeding. We then turn to questions of substantive law. As noted, on May 11, 1999, the district court stayed the litigation in order to allow the BLM to make an initial determination regarding the validity and scope of the Counties’ claimed rights of way. The BLM ruled against the Counties, and SUWA filed a motion seeking to enforce that decision in the district court. The district court treated SUWA’s motion as an appeal of informal agency action and therefore limited its review to the administrative record and employed the arbitrary and capricious standard of review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). In effect, it treated the initial stay as a binding primary jurisdiction referral. The Counties argue that the district court should have treated the BLM’s decision not as a binding primary jurisdiction referral but as an internal, non-binding administrative determination. The difference is significant. If the doctrine of primary jurisdiction applies, the BLM had authority to determine the validity of the R.S. 2477 claims in question, and judicial review is limited to determining whether there was substantial evidence in the BLM proceeding to support the agency’s determinations. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574-75 (10th Cir.1994). If not, and the district court’s stay of the judicial proceeding and remand to the agency was solely for the purpose of enabling the agency to determine its own position in the litigation, then the district court should have conducted a de novo proceeding based on the plaintiffs’ claims of trespass and requests for declaratory judgments regarding the validity of the R.S. 2477 claims; the parties were entitled to introduce evidence in court (including but not limited to the administrative record), and questions of fact would be decided by the court on a preponderance of the evidence standard. The circuits are split over the standard of review of decisions whether to recognize the primary jurisdiction of an administrative agency. This Court, like the Fourth and District of Columbia circuits, reviews decisions regarding primary jurisdiction under an abuse of discretion standard. Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1377 (10th Cir.1989); Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 947-948 (10th Cir.1995). Accord, Nat’l Tel. Coop. Ass’n v. Exxon Mobil Corp. 244 F.3d 153, 156 (D.C.Cir.2001); Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir.1996). Other circuits review such decisions de novo. E.g., Access Telecomms. v. Southwestern Bell Tel. Co., 137 F.3d 605, 608 (8th Cir.1998) (reviewing the primary jurisdiction issue de novo without deciding the question); Newspaper Guild of Salem v. Ottaway Newspapers, Inc., 79 F.3d 1273, 1283 (1st Cir.1996); National Communications Ass’n v. Am. Tel. & Tel. Co., 46 F.3d 220, 222 (2d Cir.1995); Int’l Bhd. of Teamsters v. Am. Delivery Ser. Co., 50 F.3d 770, 773 (9th Cir.1995). We adhere to this circuit’s standard of review, while noting that any error of law is presumptively an abuse of discretion and questions of law are reviewed de novo. Primary jurisdiction is a prudential doctrine designed to allocate authority between courts and administrative agencies. An issue of primary jurisdiction arises when a litigant asks a court to resolve “[an] issue[ ] which, under a regulatory scheme, ha[s] been placed within the special competence of an administrative body.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). If the issue is one “that Congress has assigned to a specific agency,” Williams Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491, 1496 (10th Cir.1996), the doctrine of primary jurisdiction allows the court to stay the judicial proceedings and direct the parties to seek a decision before the appropriate administrative agency. Western Pac., 352 U.S. at 64-, 77 S.Ct. 161. The agency is then said to have “primary jurisdiction.” There is no mechanical formula for applying the doctrine of primary jurisdiction. In each case, “the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.” Id. at 64, 77 S.Ct. 161. The doctrine serves two purposes. First, it promotes regulatory uniformity by preventing courts from interfering sporadically with a comprehensive regulatory scheme. See, e.g., United States v. Radio Corp. of America, 358 U.S. 334, 346, 350, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959) (citing Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907)). Second, the doctrine promotes resort to agency, expertise by allowing courts to consult agencies on “issues of fact not within the conventional experience of judges.” Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 96 L.Ed. 576 (1952); See also Great N. R.R. Co. v. Merchants’ Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 66 L.Ed. 943 (1922). These two concerns — régulatory uniformity and agency expertise- — drive the primary jurisdiction analysis. When a decision by a court would threaten the uniformity of a regulatory scheme or require the court to confront issues of fact outside of its conventional experience, the doctrine of primary jurisdiction allows the court to suspend the judicial process and direct the parties to seek a decision before the appropriate administrative agency. Western Pac., 352 U.S. at 64, 77 S.Ct. 161. All of this assumes that Congress has, by statute, given authority over the issue to an administrative agency. If not, there is no need to assess uniformity and expertise because the issue is not one that, “under a regulatory scheme, ha[s] been placed within the special competence of an administrative body.” Id. at 64, 77 S.Ct. 161. Thus, before we delve into questions of uniformity and expertise, we must determine whether Congress has granted the BLM authority to determine validity of R.S. 2477 rights of way in the first place. R.S. 2477 is silent on this question. It makes no mention of what body — courts or agencies — should resolve disputes over R.S. 2477 rights of way. The BLM argues that we should interpret this silence against the backdrop of general statutory provisions that give the BLM authority to execute the laws regulating the acquisition of rights in the public lands. According to the BLM, there is a presumption that when Congress makes a grant of land and does not specify which agency, if any, is to administer the grant, the general statutory provisions giving the BLM authority over the public lands also give it authority over the grant. The Counties counter that we should interpret the statutory silence against the backdrop of over one hundred years of practice under R.S. 2477. They maintain that both the BLM and the courts have always operated under the assumption that courts are the final arbiters of R.S. 2477 rights of way, and that this practice should inform our interpretation of the statute. The BLM’s argument, we believe, confuses a land agency’s responsibility for carrying out the executive function of administering congressionally determined procedures for disposition of federal lands with the authority to adjudicate legal title to real property once those procedures have been completed. The latter is a judicial, not an executive, function. It is one thing for an agency to make determinations regarding conditions precedent to the passage of title, and quite another for the agency to assert a continuing authority to resolve by informal adjudication disputes between itself and private parties who claim that they acquired legal title to real property interests at some point in the past. In Wilson v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979), for example, the boundary of an Indian reservation had become unsettled by movement of the Missouri River. The Bureau of Indian Affairs, as trustee of the tribe’s reservation lands, had land management authority (much as the BLM has authority here, pursuant to 43 U.S.C. § 2). Yet, rather than conducting an agency adjudication of the issue, with an appeal on the record in the federal court, the United States went into federal court and sued to quiet title. Id. at 660, 99 S.Ct. 2529. Similarly, in United States v. Jenks, 22 F.3d 1513, 1517 (10th Cir.1994), the National Forest Service disputed a landowner’s claim of right to a patent or common law easement over national forest lands; rather than purporting to resolve the controversy through an administrative procedure, the Forest Service filed an action in court. Perhaps more to the point, for over a century, in every Land Department or BLM decision in which parties sought a ruling on the validity of an R.S. 2477 claim, the agency maintained that this was a matter to be resolved by the courts. See pages 35-37 below. And in prior cases in this Circuit, the BLM has appeared as a litigant, without ever suggesting that its administrative determinations are entitled to legally enforceable status as a matter of primary jurisdiction. This case is the first occasion the government has ever purported to exercise the authority to resolve the validity of R.S. 2477 claims in an informal adjudication before the agency. The BLM relies primarily on the Supreme Court’s decision in Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659 (1920). In that case, the owner of an unpatented mining claim applied to the Land Department (the BLM’s predecessor) for a patent, which is the instrument by which the government conveys a grant of public land to a private person. After a hearing, the Department denied him a patent, concluding that the land was nonmineral in character and that there had been no adequate mineral discovery — in effect, declaring the claim invalid. When the United States later sued in district court to eject the claimant from the premises, the district court gave conclusive effect to the Land Department’s declaration of invalidity. On appeal, the claimant argued that this was error; that, although the Land Department had authority to deny him a patent, it lacked authority to make a binding declaration on the validity of his claim. The Supreme Court disagreed, holding that the Land Department had authority to determine the validity of unpatented mining claims. According to the Court, this authority rested not on any specific grant of authority in the mineral land law, but on the general principle that, “in the absence of some direction to the contrary,” the general statutory provisions giving the Land Department authority to execute the laws regulating the public lands also give it authority to inquire into claims against the government under a statutory grant of land. Id. at 461, 40 S.Ct. 410. The Supreme Court made clear, however, that the agency’s authority continues only “so long as the legal title remains in the government.” Id. at 460, 40 S.Ct. 410. Once legal title passes by the issuance of a mining patent, “the power of the department to inquire into the extent and validity of the rights claimed against the government ... cease[s].” Id. at 461, 40 S.Ct. 410 (quoting Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 593, 18 S.Ct. 208, 42 L.Ed. 591 (1897)). The BLM urges us to extend the reasoning of Cameron to the R.S. 2477 rights of way at issue here. According to the BLM, the same general statutory provisions giving the Land Department authority to rule on the validity of unpatented mining claims should give the BLM authority to rule on the validity of R.S. 2477 rights of way. However, this argument ignores a fundamental difference between mining claims and R.S. 2477 rights of way: title to a mining claim passes by means of a patent, which is issued by the agency in accordance with specified procedures and subject to specified substantive prerequisites. Title to an R.S. 2477 right of way, by contest, passes without any procedural formalities and without any agency involvement. Mining claimants who want legal title must apply to the BLM for a patent. See 30 U.S.C. § 29 (derived from the Mining Law of 1872, Act of May 10, 1872, ch. 152, § 6, 17 Stat. 91, 92); 43 U.S.C. § 2; see generally 2 American Law of Mining § 51.03 (2d ed.2004). The BLM then has authority to “consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale” — in effect, to decide whether the claim is valid, Steel v. St. Louis Smelting & Refining Co., 106 U.S. 447, 451, 1 S.Ct. 389, 27 L.Ed. 226 (1882). The BLM will issue a patent — and thus pass title — only when it is satisfied that all statutory requirements have been met. United States v. New Jersey Zinc Co., A-30782, 74 I.D. 191, 205-06 (1967). Furthermore, when a private party protests the issuance or nonissuance of a patent, the BLM has authority to hold a hearing and pass on the applicant’s compliance with the statutory requirements. See, e.g., Devereux v. Hunter, 11 Pub. Lands Dec. 214, 215-16 (1890); Alice Placer Mine, 4 Pub. Lands Dec. 314, 316-17 (1886). This determination is binding on courts, reviewable only in accordance with administrative law or in a direct action to cancel, modify, or issue the patent. Cameron, 252 U.S. at 460-61, 464, 40 S.Ct. 410; St. Louis Smelting & Refining Co. v. Kemp, 104 U.S. 636, 640-41, 26 L.Ed. 875; Oregon Basin Oil & Gas Co. v. Work, 6 F.2d 676, 678 (D.C.Cir.1925). Thus, prior to the issuance of a patent, the BLM retains authority and control over the subject lands, as well as over the process by which private parties assert claims. Once title passes, however, the BLM loses authority over the subject lands, and the title granted by the patent can be challenged only through the courts. See United States v. Schurz, 102 U.S. 378, 396, 26 L.Ed. 167 (1880). Congress established a very different system for R.S. 2477 rights of way. Because there are no patents, title to rights of way passes independently of any action or approval on the part of the BLM. All that is required, as we explain further in Section V.B.2, are acts on the part of the grantee sufficient to manifest an intent to accept the congressional offer. In fact, because there were no notice or filing requirements of any kind, R.S. 2477 rights of way may have been established — and legal title may have passed — without the BLM ever being aware of it. Thus, R.S. 2477 creates no executive role for the BLM to play. This suggestion is confirmed by longstanding BLM practice under the statute. See Sierra Club v. Hodel, 848 F.2d 1068, 1080 (10th Cir.1988) (practice under a statute is relevant evidence of how that statute should be interpreted) (quoting United States v. Midwest Oil Co., 236 U.S. 459, 473, 35 S.Ct. 309, 59 L.Ed. 673 (1915)). Until very recently, the BLM staunchly maintained that it lacked authority to make binding decisions on R.S. 2477 rights of way. Illustrative of this position is the BLM’s decision (or lack thereof) in Alfred E. Koenig, A-30139 (November 25, 1964). There, an applicant seeking to purchase certain tracts of land asked the BLM to adjudicate the validity of an asserted R.S. 2477 right of way. The BLM refused on the ground that courts, not it, should be the final arbiter of R.S. 2477 claims. The Secretary of the Interior affirmed: The Bureau’s decision does leave the question of the status of the [R.S. 2477] road uncertain both for appellant and for the small tract lessees who may be affected by any determination regarding the status of the road insofar as it conflicts with lands leased by them or which may be patented to them. However, .... this Department has considered State courts to be the proper forum for determining whether there is a public highway under that section of the Revised Statues [Statutes] and the respective rights of interested parties. Thus, although the Bureau’s conclusion may seem unsatisfactory to all of the parties concerned here, it was the proper conclusion in the circumstances as the questions involved are matters for the courts rather than this Department. Id. at 2-3. This refusal to adjudicate R.S. 2477 disputes has been the consistent position of the BLM and the IBLA for over one hundred years. In its 1993 Report to Congress, the BLM explained that “[n]o formal process for either asserting or recognizing R.S. 2477 rights-of-way currently is provided in law, regulations, or DOI policy,” and that “[c]ourts must ultimately dertermine [sic] the validity of such claims.” U.S. Department of the Interior, Report to Congress on R.S. 2f77: The History and Management of R.S. 2177 Rights-of-Way Claims on Federal and Other Lands 25 (June 1993) (hereinafter cited as 1993 D.O.I. Report to Congress). The BLM also has been reluctant, until very recently, to issue regulations governing R.S. 2477 rights of way. In fact, its earliest regulation on the subject disclaimed any role for the federal government in implementing R.S. 2477. That regulation states, in its entirety: The grant [under R.S. 2477] becomes effective upon the construction or establishing of highways, in accordance with the State laws, over public lands .not reserved for public uses. No application should be filed under said R.S. 2477 as no action on the part of the Federal Government is necessary. 43 C.F.R. § 244.55 (1939) (footnote omitted). This regulation reflects the position that R.S. 2477 gives the BLM no executive role, and indicates that the BLM interpreted the grant to take effect without any action on its part. Subsequent editions of the Code of Federal Regulations carried forward the same language, which was not repealed until the code underwent extensive post-FLPMA (and, thus, post-R.S. 2477) revisions in 1980. Moreover, not only has the BLM long declined to regulate R.S. 2477 rights of way, but Congress had forbidden it from doing so. In 1994, eighteen years after R.S. 2477 had been repealed, the BLM changed course and proposed comprehensive regulations governing R.S. 2477 rights of way. See 59 Fed.Reg. 39216, 39219-27 (1994). These rules proposed, for the first time, an administrative procedure by which the BLM would adjudicate the validity of R.S. 2477 claims. Congress responded with an appropriations provision prohibiting the Department of the Interior from issuing final rules governing R.S. 2477: No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477 (43 U.S.C. [§ ] 932) shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act [Sept. 30, 1996]. U.S. Department of the Interior and Related Agencies’ Appropriations Act, 1997, § 108, enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009 (1996). The General Accounting Office has concluded that this provision has the status of permanent law. GAO Opinion B-277719 at 1-5 (Aug. 20,1997). SUWA argues that this congressional prohibition applies only to “final rule[s] or regulationfs],” and that Congress therefore must have wanted to preserve the BLM’s authority to “issu[e] orders and engag[e] in adjudications related to R.S. 2477.” SUWA Br. 67. But this ignores the fact that for over one hundred years the BLM had taken the position it could not issue binding orders adjudicating R.S. 2477 rights of way; there was, accordingly, no such authority to preserve. Prior to this litigation, even the BLM interpreted the prohibition as an indication that Congress chose to preserve the status quo, according to which courts, not the BLM, adjudicate R.S. 2477 rights of way. But even assuming we cannot know the congressional intention behind the prohibition, its mere existence undercuts the BLM’s primary jurisdiction argument. For primary jurisdiction is appropriate only if R.S. 2477 is an “issue[ ] which, under a regulatory scheme, ha[s] been placed within the special competence of an administrative body.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). It is highly unlikely that R.S. 2477 is such an issue when Congress has forbidden the BLM from issuing regulations on the subject or effectuating proposed rules creating a procedure for adjudicating R.S. 2477 claims. In sum, nothing in the terms of R.S. 2477 gives the BLM authority to make binding determinations on the validity of the rights of way granted thereunder, and we decline to infer such authority from silence when the statute creates no executive role for the BLM. This decision is reinforced by the long history of practice under the statute, during which the BLM has consistently disclaimed authority to make binding decisions on R.S. 2477 rights of way. Indeed, there have been 139 years of practice under the statute — 110 years while the statute was in force, and 29 years since its repeal — and the BLM has not pointed to a single case in which a court has deferred to a binding determination by the BLM on an R.S. 2477 right of way. We conclude that the BLM lacks primary jurisdiction and that the district court abused its discretion by deferring to the BLM. This does not mean that the BLM is forbidden from determining the validity of R.S. 2477 rights of way for its own purposes. The BLM has always had this authority. It exercises this authority in what it calls “administrative determinations.” In its 1993 Report to Congress, the Department of the Interior explained that the BLM had developed “procedures for administratively recognizing and ... recording] this information on the land status records.” 1993 D.O.l. Report to Congress, at 25. These procedures “are not intended to be binding, or a final agency action.” Id. Rather, “they are recognitions of ‘claims’ and are useful only for limited purposes,” namely, for the agency’s internal “land-use planning purposes.” Id. at 25-26. Nonetheless, they may reflect the agency’s expertise and fact-finding capability, and as such will be of use to the court. It was this administrative procedure that was at issue in Hodel, where we stated that “Tenth Circuit precedent requires that the initial determination of whether activity falls within an established right-of-way is to be made by the BLM and not the court.” 848 F.2d at 1084 (internal citation and quotation marks omitted). After the BLM made its initial administrative determination in Hodel, the district court conducted a twenty-five day trial on the merits, hearing testimony from twenty-six witnesses and making its own findings of fact. This was not, as the BLM now argues, a primary jurisdiction referral. It was an opportunity for the BLM to conduct an administrative determination for its own land-use planning purposes and to determine its own position in the litigation. It was not binding on the parties, and it was not the object of formal legal deference from the district court (though the court’s ultimate decision relied in part on evidence from BLM expert witnesses). Nothing in our decision today impugns the BLM’s authority to make non-binding, administrative determinations, or the introduction and use of BLM findings as evidence in litigation. V. LEGAL ISSUES ON REMAND Because the BLM lacks primary jurisdiction over R.S. 2477 rights of way, a remand is required to permit the district court to conduct a plenary review and resolution of the R.S. 2477 claims in this case. On remand, the parties are permitted to introduce evidence regarding the validity and scope of the claims, including, but not limited to, the evidence contained in the administrative record before the BLM. Bearing in mind the burden this places on the district court, and the importance of these issues to resolution of potentially thousands of R.S. 2477 claims in the State of Utah and elsewhere, this Court will proceed now to address some of the significant legal issues that have been briefed by the parties on appeal and ruled on by the court below. This should not be understood as a comprehensive catalog of applicable legal principles. Undoubtedly, new legal issues will arise in the course of the proceedings on remand. More importantly, as explained below, we are aware that some of the central legal concepts involved in this case cannot be resolved in the abstract, but must necessarily be fleshed out in the context of the actual facts of the case. A. State or Federal Law The central question in this case is how a valid R.S. 2477 right of way is acquired. As framed by the parties, the answer to this question turns on whether federal or state law governs the acquisition of rights of way under R.S. 2477. For reasons discussed below, we are more doubtful than the parties that the choice between federal and state law is outcome determinative. The principal difference between the federal and state standards, according to the parties, is whether acceptance of an R.S. 2477 right of way is dependent on actual “construction,” meaning that “[s]ome form of mechanical construction must have occurred to construct or improve the highway,” (the supposed “federal” standard adopted by the BLM), or whether it can be established by the “passage of vehicles by users over time” (the supposed “state” standard advocated by the Counties). San Juan County (S.J.C.) Br. 27 (quoting BLM Manual 2801, Rel. 2-268, 2801.48Blb (March 8, 1989)). But it is far from clear, first, that “federal” standards are necessarily those adopted by the BLM in its administrative determinations in this case; those standards, while presumably helpful in setting forth the agency’s thinking on the subject, have never formally been adopted in any agency action with the force and effect of law, or adopted by any court as an interpretation of the terms of R.S. 2477. Moreover, it is far from clear that any of the R.S. 2477 claims under adjudication would pass the “usage” test and flunk the “construction” test, or vice versa. Much depends on questions of degree: what type, how frequent, and how well documented need the “passage of vehicles over-time” have been to establish a right of way under state law, if applicable? How extensive must “construction” activities have been to establish a right of way under the BLM administrative definition? If the necessary extent of “construction” is the construction necessary to enable the general public to drive vehicles over the route, it may well turn out that the two standards will lead to the same results in most cases. We nonetheless begin with this question: which law applies? 1. The BLM Interpretation In making its administrative determinations, the BLM found that three criteria must be satisfied for a right of way to be recognized under R.S. 2477: “The claimed right-of-way must have been located on unreserved public lands; it must have been actually constructed; and it must have been a highway.” The agency further defined each 'of these terms. See pages 775, 782, and 783-84 below. These criteria draw heavily on a 1980 letter written by the Deputy Solicitor of the Department of the Interior, Frederick Ferguson, to an Assistant Attorney General at the Land and Natural Resources Division of the Department of Justice, James Moor-man. Supp.App. 46 (April 28, 1980). In 1994, the criteria were incorporated in proposed regulations issued by the BLM. See 59 Fed.Reg. 39,216 (Aug. 1, 1994). Congress, however, passed a permanent appropriations rider preventing those regulations from taking effect unless expressly authorized by statute. U.S. Department of the Interior and Related Agencies’ Appropriations Act, 1997, § 108, enacted by the Omnibus Consolidated Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009 (1996). Accordingly, the BLM criteria have never been adopted by the agency through a formal rule or regulation and do not have the force of law. Nonetheless, the BLM used these criteria in making each of the determinations at issue in this' case. The district court, recognizing that the BLM’s interpretation of the statute “ap