Rs 2477: the Battle Over Rights-of-way on Federal Land

• Publication year: 2003
• Pages: 105

32 Colo.Law. 105 Colorado Lawyer 2003.

2003, October, Pg. 105. RS 2477: The Battle Over Rights-of-Way on Federal Land

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105

Vol. 32, No. 10, Pg. 105

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 105]

Specialty Law Columns
Natural Resource and Environmental Notes
RS 2477: The Battle Over Rights-of-Way on Federal Land
by Michael S. Freeman, Lusanna J. Ro

This column is sponsored by the CBA Environmental Law, Water Law, and Mineral Law Sections. The Sections publish articles of interest on local and international topics

Column Editors

Maki Iatridis of The Hannon Law Firm, LLC, Denver (Environmental) - (303) 861-8800; Michael F. Browning of Porzak Browning & Bushong LLP, Boulder (Water) - (303) 443-6800

Gus Michaels, Boulder (Mineral) - (303) 442-3688

Michael S. Freeman Lusanna J. Ro

About The Authors:

This month's article was written by Michael S. Freeman, Denver, an attorney with Faegre & Benson LLP - (303) 607-3672, MFreeman@faegre.com; and Lusanna J. Ro, Denver, an Assistant Attorney General with the Office of the Attorney General, Natural Resources and Environment Section - (303) 866-6002, lusanna.ro@ state.co.us.

The views expressed in this article represent only those of the authors and do not necessarily represent views held by their employers or clients.

RS 2477, an 1866 statute repealed in 1976, granted rights-of-way over public land for the construction of highways.

Today, the existence of such rights-of-way in many areas is hotly debated. This year, the U.S. Department of Interior has taken controversial steps toward processing such claims.

A federal statute that was passed in 1866 (a year after the Civil War ended), and repealed more than a quarter century ago, continues to loom large over public land management in Colorado and other western states. Revised Statute 2477 ("RS 2477") was passed by Congress to encourage settlement of the American West. RS 2477 granted rights-of-way ("ROWs") for the construction of "highways" over public lands. In fact, much of today's road infrastructure in the western United States got its start under RS 2477.1

Congress repealed RS 2477 in 1976, but in doing so, preserved the validity of preexisting RS 2477 ROWs. Over the past two decades, RS 2477 ROWs have been at the center of an escalating battle among the federal government, conservation groups, state and county governments, and off-road vehicle groups. The basic problems are twofold. First, no formal application was required to perfect RS 2477 ROWs. Further, the federal government never required persons claiming ROWs to file any notice of their existence. As a result, no one knows exactly where all the RS 2477 ROWs established before 1976 are located or how many exist. Second, even twenty-seven years after the repeal of RS 2477, the meaning of its operative terms for establishing a ROW - "construction" of a "highway" - remain hotly disputed.

Today, some western state and county governments, particularly in rural communities, assert that thousands of alleged RS 2477 ROWs exist in areas that otherwise could be classified by the federal government as "roadless" or potential wilderness, as well as in national parks and monuments.2 Recognition of such RS 2477 ROWs could prevent the federal government from designating such land as protected wilderness and would limit the government's ability to protect these areas by restricting access to them. As a result, conservationists are concerned that recognition of illegitimate RS 2477 claims could keep public lands permanently open to mining, oil and gas development, and other uses.

This article provides an overview of RS 2477. It also discusses recent developments in Colorado and other western states, where, in 2003, the federal government has taken steps that suggest it will attempt to process thousands of RS 2477 claims. Conservation groups fear that the federal government will take a generous approach to recognizing questionable claims.

RS 2477 Background

One casebook describes RS 2477 as a "quaint" artifact of nineteenth century public land management law.3 RS 2477 was enacted in 1866

during a period when the Federal Government was promoting settlement of the West. In the same era and in the same manner, Congress granted rights-of-way for numerous [other] purposes [such as railroad construction].4

RS 2477 provided, in its entirety, that "[t]he right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted."5 The term "not reserved for public uses" referred to federal lands that were subject to sale or disposal to individuals under general land laws. For example, once set aside as a national forest or for a national park, the land was reserved for public use.6 RS 2477 did not define the operative terms "highway" or "construction." Further, Congress provided no legislative history explaining the meaning of these terms.7

Today, some counties and states argue that the existence of an RS 2477 ROW historically has been determined according to state law. Many state laws, in turn, do not necessarily require actual mechanical construction for a road to be established. Under this argument, periodic foot or horseback travel wearing a path through an area, rather than actual efforts to construct a road connecting identifiable points, was sufficient in some western states to establish an RS 2477 ROW.8 These claimants argue that developments in public lands law since the 1970s cannot erase property rights created decades earlier. In such a view,

[existing] rights-of-way and the public's continued access to these public lands has [sic] been increasingly threatened by a small group of special interests and some federal bureaucrats.9

On the other side of the controversy, conservationists and (in previous litigation) the federal government have argued that the plain meaning of the statutory term "highway" connotes a significant road connecting two or more points.10 Similarly, they argue that the plain language of RS 2477 requires that actual mechanical road "construction" activity must have occurred to obtain a ROW. State law, they claim, has been used "to fill in gaps" in the terms of RS 2477, but state law cannot interpret

a federal statute to create broader rights than were granted by Congress.11

This view sees RS 2477 claimants as using the statute "to circumvent the protective requirements of current environmental and land use law and to authorize the

. . . expansion of footpaths and animal trails into highways."12 Conservation groups point out that many RS 2477 claims involve "cow paths, horse trails, river beds [and] off-road vehicle routes" that have no particular destination and do not fit the conventional definition of a "road" or "highway." They argue that the large majority of "these phantom-road claims are illegitimate assertions meant to undermine federal protected areas, thwart wilderness protection" and to make these areas available to mining, oil and gas, and off-road vehicle interests.13

The controversy exists today in part because Congress did not require persons constructing a highway to file any application for an RS 2477 ROW or to record a ROW.14 RS 2477 simply

set out an open-ended offer from the United States to the public of a right-of-way across unreserved public lands. . . . This offer was accepted, and a valid R.S. 2477 right-of-way created, by the construction of a road open to and used by the public. . . .15

As a result, records do not exist documenting the existence of many RS 2477 ROWs. Determining the existence of an RS 2477 ROW today can be difficult. It often requires a detailed historical review of ancient maps, land patents, and other often-sketchy records of human activity on the frontier. In many cases, these records are more than a century old because they predate the land being "reserved for public uses," such as a national park or national forest.

For most of the statute's existence, the absence of formal RS 2477 records presented relatively few problems for federal land management, "because in general the . . . existence [of RS 2477 roads was] obvious and unquestioned."16 Moreover, during most of this period, federal policy continued to favor the disposal and development of public lands rather than their

"retention and management" for public use.17 That situation has changed with developments in public lands law since the 1970s.

FLPMA and the
Repeal of RS 2477

RS 2477 was repealed in 1976 as part of the passage of the Federal Land Policy and Management Act ("FLPMA").18 Despite the repeal, FLPMA preserved "any valid" ROWs existing on the date of FLPMA's approval.19 However, FLPMA did not provide any mandatory procedure for identifying and adjudicating asserted RS 2477 ROWs.20

FLPMA also brought RS 2477 into the spotlight by requiring the U.S. Department of Interior ("DOI") to identify and inventory large roadless areas of public lands administered by the Bureau of Land Management ("BLM"), an agency within DOI. FLPMA directed DOI to make recommendations about whether inventoried roadless areas should be designated as protected wilderness under the Wilderness Act of 1964.21 As a result, the presence or absence of RS 2477 ROWs began to have significant consequences for the management of surrounding lands.22

Since FLPMA's passage, DOI's approach to RS 2477 has varied with presidential administrations.23 The debate also has escalated since the 1980s,24...