CHAPTER 7 R.S. 2477: IS THIS AS GOOD AS IT GETS?

• Jurisdiction: United States

Rights-of-Way How Right is Your Right-of-Way?
(May 1998)
CHAPTER 7
R.S. 2477: IS THIS AS GOOD AS IT GETS?
Wendy J. Thurm ¹
Solicitor's Office
U.S. Department of the Interior
Washington, D.C.

TABLE OF CONTENTS

SYNOPSIS

I. INTRODUCTION

II. THE HISTORY AND CONTROVERSY OF R.S. 2477

A. Congressional Enactment of R.S. 2477

B. What Does It Mean?

C. What Law Governs?

III. HISTORICAL ADMINISTRATION OF R.S. 2477 RIGHTS OF WAY

A. Pre-FLPMA Regulations

B. Post-FLPMA Regulations

C. The 1988 Hodel Policy

IV. THE DEPARTMENT OF THE INTERIOR'S 1994 PROPOSED RULES ON R.S. 2477

V. RECENT LEGISLATIVE EFFORTS TO RESOLVE THE R.S. 2477 QUAGMIRE

A. Bills Introduced in the 104th Congress

B. Interior's 1977 Interim Guidance

C. R.S. 2477 Rider Added to Flood Relief Bill

D. Interior's Proposed Legislation

IV. CONCLUSION

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I. INTRODUCTION

The right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.

With this seemingly simple, 20-word federal statute, Congress offered to grant rights-of-way to construct highways over unreserved public lands. Originally, the grant was Section 8 of a law entitled "An Act Granting Right of Way To Ditch and Canal Owners Over The Public Lands, and For Other Purposes." The law was also known as the Mining Act of 1866. Several years after the Act was passed, this provision became section 2477 of the Revised Statutes, hence the reference as R.S. 2477. Later still, the statute was recodified as 43 U.S.C. § 932.

R.S. 2477 was passed during a period in our history when the federal government was aggressively promoting settlement of the West. Under the authority of R.S. 2477, thousands of miles of highways were built across the public domain. It was a primary authority under which many existing state and county highways were constructed and operated over federal lands in the western United States. Highways were constructed without any approval from the federal government and with no documentation in the public land records. Consequently, there are few official records documenting R.S. 2477 rights-of-way or indicating that a highway was constructed on federal land under this authority.

One hundred and ten years after its enactment, R.S. 2477 was repealed by the Federal

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Land Policy and Management Act (FLPMA) of 1976.² Nevertheless, the impact of this right-of-way provision is still being felt, because highways built before October 21, 1976 (the effective date of FLPMA) were protected, as valid, existing rights-of-way.³

In recent years, there has been growing debate and controversy over whether specific highways were constructed pursuant to R.S. 2477, and if so, the extent of the rights obtained under the grant. This uncertainty as to the nature and extent of R.S. 2477 rights-of-way across federal land has made sensible land planning and management difficult, at best. To address this problem, in 1992, Congress directed the Department of the Interior to conduct a study of the history and management of R.S. 2477 rights-of-way. Interior's Report to Congress was submitted in June, 1993.

In its report to Congress, the Department recommended the adoption of regulations to determine finally the validity and scope of claimed R.S. 2477 rights-of-way. At the same time, Secretary Babbitt directed the land management agencies to refrain from taking any administrative action on R.S. 2477 claims — save for those claimants who demonstrated an immediate and compelling need for such a determination — until final regulations were in place. Interior followed up this recommendation by proposing regulations in 1994 to create such a process. Following a year long comment period in which the Department received over 3,200 public comments, Congress prohibited Interior from finalizing these regulations. In the Interior and Related Agencies Appropriations Bill for FY 1997, Congress prohibited the Department from promulgating final rules without the express approval of Congress.

The 1995 and 1996 legislative sessions of Congress saw the introduction of several bills seeking to resolve outstanding disputes over R.S. 2477. In general, these bills would have set up a process for determining the validity of thousands of claimed R.S. 2477 rights-of-way, put the burden on the United States to disprove the validity of any claimed right-of-way, and mandated that all determinations on R.S. 2477 be made under state law. The Department strongly opposed these proposals.

To fill the void left by Congress' prohibition on final rules, Secretary Babbitt issued interim guidance on R.S. 2477 in January, 1997. This interim guidance reiterated the previous directive that claims processing should be delayed unless the claimant demonstrated an immediate and compelling need for an administrative determination. For those claimants

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demonstrating such a need, the interim policy provided skeletal guidance on the key terms of the statute.

The Department's interim guidance sparked yet more controversy, with some members of Congress arguing that it violated Congress' prohibition on the promulgation of final "rules or regulations." To that end, an amendment was added to the Fiscal Year 1997 Supplemental Appropriation bill that would have nullified the 1997 interim policy and would have required that all judicial and administrative determinations of the validity of R.S. 2477 claims be made in accordance with state law. This amendment was deleted from the Supplemental Appropriations bill following a presidential veto.

In an effort to squarely present and seek to resolve all outstanding R.S. 2477 issues, the Departments of the Interior, Defense and Agriculture submitted legislation to Congress in August, 1997. To date, no action has been taken on this proposed legislation.

II. THE HISTORY AND CONTROVERSY OF R.S. 2477

A. Congressional Enactment of R.S. 2477

R.S. 2477 was one section of a law entitled "An Act Granting Right of Way To Ditch and Canal Owners Over The Public Land, and For Other Purposes." The law was more commonly known as the Mining Act of 1866. This legislation was passed during a period when the federal government was aggressively promoting settlement of the West. Mining and homesteading had been occurring on the public domain without statutory authority, as had construction of roads, ditches, and canals to support these undertakings. Passage of the Homestead Act in 1862⁴ began a new era of settlement of the federal lands. Access was promoted by Congress through railroad land grants and special legislation for major transportation routes but was ignored when it came to the handling of private and individual access. These important but smaller access matters were generally left to local customs or state law. The Mining Act of 1866 not only established the first system for the patenting of lode mining claims, but it also provided for access.

A brief look at how Congress passed this legislation provides some clues as to how right-of-way provisions for highways and canals were assembled into a mining law. The Mining Act of 1866 was enacted in the midst of a major dispute among factions of Congress over the handling of federal mineral deposits. Some, led by California, favored a do-nothing approach. Others favored the sale of the mineral lands for paying off the federal debt incurred by the Civil War and other federal activities. There was also continued movement to encourage people to use their War scrip and settle the Western Territories.

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The House of Representatives enacted a bill authorizing the sale of mineral lands.⁵ The Senate countered with a bill providing for preemption of lode minerals.⁶ When the House Committee on Public Lands held up action on S. 257, the Senate amended a House-passed ditch and canal right-of-way bill with a revised version of S. 257 in order to keep the legislation out of the hands of the House Committee on Public Lands.⁷ This last version was then approved by the House and enacted into law on July 26, 1866.⁸ One significant change between the original H.R. 365 and the legislation enacted was the addition of Section 8, the grant of rights-of-way for the construction of highways across unreserved federal land.

Section 8 of the Mining Act was reenacted and codified as part of the Revised Statutes in 1873. This was the result of recommendations from the Public Land Review Commission, authorized in 1866 to review existing legislation affecting public lands and to suggest codification into related groups. The designation "R.S. 2477" thus replaced "Section 8 of the Mining Act." In 1938, as part of the recodification of the statutes, R.S. 2477 became 43 U.S.C. § 932 until its repeal in 1976 by FLPMA.

B. What Does It Mean?

The significance of Congressional reenactment of this right-of-way provision is a subject of debate. Some view the Congressional action as a conscious move to retain a broad right-of-way authority. Others see this as an oversight by Congress that has allowed the language of R.S. 2477 to take on a meaning that was probably unintended in the 1866 Act. A search of the statute's legislative history reveals little hard evidence of what Congress was thinking when it included Section 8 in the Mining Act of 1866.⁹

The words in the statute are straightforward. R.S. 2477 is a grant of a right-of-way for the construction of highways across unreserved public lands. One hundred and thirty-two years after enactment, however, the intent and scope of this statute remains elusive. Several historical and legal questions remain. What did Congress grant and to whom? If a grant was made, to what extent were rights conveyed? How and when should these rights be applied? Who has jurisdiction over these rights?

Some argue that the Congressional grant and its application are very broad — a blanket

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authority...