During the period of expansion of the Western frontier (1796-1976), the U.S. Government embraced a policy of disposal of the federal lands, transferring them to private individuals, railroads, and states in order to provide a revenue base. In 1976, the passage of the Federal Land Policy and Management Act (FLPMA), changed the course of federal land policy from disposal to retention of public lands.

What is "Revised Statute 2477"? R.S. 2477 was adopted by Congress in 1866 and granted a right-of-way for the construction of highways across public land not reserved for public uses. In the Federal Land Policy and Management Act (FLPMA), enacted in 1976, Congress repealed R.S. 2477, but did not terminate valid rights-of-way existing on the date of FLPMA's enactment. Inconsistent court decisions and incomplete guidance from Federal land managers over the succeeding years have not resulted in settling claims asserted under R.S. 2477. In 1992, Congress directed the Department of the Interior to study the history, impacts, status and alternatives to R.S. 2477 rights-of-way and to make recommendations for assessing claims. As an essential element of the Department's study, officials sought input from and consulted with affected interests from the public land states, including public hearings conducted in Alaska, California, Idaho, Oregon, Montana, Nevada and Utah. In addition, the Department received and reviewed more than 4,000 pages of written comments. In June, 1993, the Department reported the results of its study to Congress. © 2003 NPLnews

• The Department of the Interior (DOI), the Nation's largest land manager, is in charge of administering public land policies relating to claims of valid existing rights. Pre-existing rights of way over public lands were recognized by Section 8 of the 1866 Lode Mining Act (entitled, "An Act granting the Rights-of-way to Ditch and Canal Owners Over the Public Lands, and other Purposes," 14 Stat. 251 (1866)).

• The statute reads: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." The Statute has been said to look forward as well as backward in time, applying to acceptances of the grant made at the time of its enactment forward until the time of its repeal on October 21, 1976. ¹

• Rights-of-way validly acquired pursuant to R.S. 2477 provide access to and across Federal lands for States and local governments, and the general public. Since R.S. 2477s serve as vital passageways across the lands for the citizens of each Western state and for State Governments in the ordinary exercise of their duties, administration of the R.S. 2477s have a direct and profound impact on the welfare of Western citizens and states.

• Prior to the 1970s² , DOI did little to manage these rights-of-way, primarily deferring to state law. The controversy over R.S. 2477 rights-of-way emerged with initiation of the wilderness inventory process mandated by FLPMA.

• Twenty five years after its repeal by FLPMA, the process of asserting claims under the statute is far from consistent and has been the subject of litigation between the Federal government, the states and the counties. [See DOI-Wilderness Inventory Handbook ³]

• The crux of the R.S. 2477 matter revolves not only around the validity of the existence of the R.S. 2477 claim, but also around which government has jurisdiction over those "R.S. 2477 surface features" of the land i.e. what is a road? ⁴ [See Utah road types].

• Since 1976, caselaw has governed the interpretation of the validity of the claim. To be valid under existing law, an R.S. 2477 must have been created before enactment of the FLPMA on October 21, 1976, must traverse federally owned public lands not reserved for a public use and must be a highway. The critical determination of the validity of an R.S. 2477, including the all important definition of what constitutes a highway, has been decided through the application of state law. [See U.S. Court of Appeals for the Ninth Circuit held in Shultz v. Army. ⁵]

• On December 7, 1988, DOI issued a policy memorandum outlining the criteria the Department would use in determining whether the Department would recognize right-of-way claims under RS2477. This policy allowed virtually any route traveled by man or pack animal to qualify as a “pre-existing” right of way. ⁶

• In 1992, the controversy over whether certain claimed access routes are "highways" that were 'constructed' pursuant to R.S. 2477 boiled over when a proposed wilderness expansion in the state of Utah was blocked by the existence of these rights of way. The issue of what is it and who gets a voice and who gets a veto over the extent of the R.S. 2477 rights of way exposed the lands ineligibility for wilderness designation (since the Wilderness Act of 1964 states that there shall be no permanent roads in a wilderness which are "subject to existing private rights").

  More Dox: 1990 BLM Policy IM90-589 Jarbidge South Canyon-Elko

• In June 1993, DOI completed a Report on R.S. 2477, at the request of Congress, after receiving more than 7000 pages of public comments as a result of public scoping meetings. In accordance with that Report's recommendations, the Department published a proposed rule ("Proposed Rule"), in the Federal Register, to govern rights of way granted under Revised Statute ("RS") 2477, recodified as 43 U.S.C. § 932. [See 59 Fed. Reg. 39216 (August 1, 1994)].

• The proposed rule would replace state definition of the terms of R.S. 2477 with more stringent definitions of its own for the words "construction," "highway," "improvements," "maintenance," "routine maintenance," and "scope."

• In 1995, Congress placed a moratorium, “Notwithstanding any other provision of law,” on any agency of the Federal Government that sought to “take any action to prepare, promulgate, or implement any rule or regulation addressing rights-of-way authorized pursuant to section 2477 of the Revised Statutes (43 U.S.C. 932), as such section was in effect before October 21, 1976.” (Section 349-a-1 of Pub. L. No. 104-59, 109 Stat. 568, 617-618, 1995).

• In 1997, Congress allowed the DOI to publish final regulations for R.S. 2477 right-of-way grants, but stated that “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.” (Pub. L. 104-208, Sec 108, 110 Stat. 3009, 1996)

• In January 1997, DOI rescinded the 1988 R.S. 2477 policy and established a new interim Departmental policy for carrying out any determinations the Department might be called upon to make regarding R.S. 2477. The new policy states that until final rules are published and take effect, determinations regarding R.S. 2477 rights-of-way will be made by the Secretary in consultation with the appropriate Interior agency, and will be deferred absent a demonstrated compelling and immediate need to make a determination. An entity wishing a determination on an R.S. 2477 right-of-way must file a written request with the agency. If a compelling need exists, the agency shall determine whether the lands were unreserved public land at the time giving rise to the claim, whether construction occurred prior to repeal of R.S. 2477, whether the right-of-way constitutes a highway, and apply state law in effect on 10/21/76 to the extent it is consistent with federal law.

• On September 4, 1997 the Acting Comptroller General of the United States ruled that DOI must obtain the approval of Congress to regulate or invalidate existing right-of-ways (R.S. 2477) granted by the Federal government prior to 1976.

• On September 11, 1997, DOI issued a memorandum IB-97-187 documenting its position on R.S. 2477.

• On January 6, 2003, BLM released a new policy regarding the R.S. 2477 issue. The new rules will affect how the Bureau processes "road claims".

  Get more from the Jan. 6, 2003 Federal Register Notice HTML, PDF.

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