The R.S. 2477 right of way dispute: constructing a solution.

• Author: Olson, Mitchell R.
• Position: Revised Statute 2477

1. INTRODUCTION

   In the midst of a massive wave of settlement, the American West of the mid-1800s demanded both assistance and freedom in order to prosper. The federal government obliged, offering a myriad of "self-help" remedies to create private property rights.(1) Homesteaders and miners responded by reaping the bounties of the public domain for personal and national gain. In contrast, during the past thirty years the federal government has repeatedly acted to preserve and manage public lands in concert with nonutilitarian goals. For example, Congress passed legislation to preserve the "primeval character and influence" and "natural conditions" of wilderness.(2) Despite this fundamental shift in land management values, Revised Statute 2477(3) (R.S. 2477)--a self-help remnant of the 1860s--has surfaced in the 1990s to jeopardize the property rights of the federal government in its designated parks, forests, refuges, wilderness, and other managed lands.

   In 1866 Congress passed R.S. 2477 as a self-executing grant of rights of way over unreserved public lands to promote the construction of highways.(4) When a claimant of an R.S. 2477 right of way, usually a local government or private individual, constructed a highway meeting the statute's plain language criteria, that right of way vested in the claimant.(5) Although Congress repealed the statute in 1976, it preserved those rights of way then in existence.(6) Twenty years later, however, the federal government and western states still actively debate how to validate rights of way and who should bear the burden of proving validity.

   The U.S. Department of the Interior (DOI) describes R.S. 2477 as "a cryptic, nineteenth century" statute lacking any process to document or verify claims.(7) In response to that void, DOI proposed regulations during 1994 that would establish uniform standards and a process to validate the existence and location of R.S. 2477 rights of way.(8) DOI hopes to alleviate the confusion over unresolved claims, threats to natural resource preservation, and the inability to accurately design future management plans.(9)

   Local governments oppose the DOI proposed regulations, claiming that they used these rights of way in the past and depend upon future recognition of valid rights of way for transportation across vast federal land holdings.(10) They claim that federal validation is unnecessary because the right of way vested in the claimant--under state law interpretations of R.S. 2477--at the time of construction of a highway over unreserved public lands.(11) The proposed regulations, however, disregard the self-executing nature of properly claimed rights of way and force claimants to prove acceptance of the R.S. 2477 grant.(12)

   This unacceptable dynamic of forcing claimants to prove their grants led western states to propose an eleven month moratorium preventing DOI's implementation of R.S. 2477 regulations.(13) Congress subsequently lifted that moratorium, but passed legislation forbidding new regulations unless approved by Congress.(14) Any new regulations must resolve who bears the burden of proving a valid R.S. 2477 right of way. DOI's proposed regulations incorporate standards to judge claimed rights of way, nominate federal officers to rule on validity, and place the burden of proof on claimants.(15) Conversely, congressional members from western states have introduced legislation placing the burden on DOI to disprove the validity of claimed rights of way.(16) Western states see no place for the DOI's proposed regulations because state courts, applying the laws of state legislatures, historically have set standards and issued rulings on R.S. 2477 claims.(17)

   To determine which side is correct, one must understand when rights vest and what acts are necessary for vesting. In the context of over five thousand potential R.S. 2477 claims,(18) many of which run through current or proposed federal wilderness and preserves, both the federal government and states have an acute interest in the resolution of these questions.

   This Article discusses the nature of this debate and argues that the proper interpretation of R.S. 2477 requires deference to state law determinations of the grant. Part II provides an introduction to the creation, application, and nature of the R.S. 2477 grant. Part III explores the customary judicial method of validating claims under state law. Part IV discusses the positive and negative implications of the regulatory intervention proposed by DOI. Part V presents a short list of potential alternative mechanisms to settle the validity of these claims. Finally, Part VI concludes that while an alternative to case-by-case adjudication could more efficiently validate proper claims, the appropriate criteria must derive from the applicable state law.

1. BACKGROUND

   1. Origins & Operations of Revised Statute 2477

      The need for Revised Statute 2477 (R.S. 2477) derived from a series of major federal territorial acquisitions in the mid-1800s.(19) By taking title to the vast western reaches of this nation, the federal government acquired the problem of managing unseen land. Miners and settlers began moving West and developing access routes across public lands.(20) The western flow of Americans demanded government action.

      After 1851, because of a lack of consensus to adopt a federal mining policy, the federal government officially followed a laissez-faire policy of non-interference with mineral lands.(21) Miners relied on customary "miners' rules" that limited the size of claims, prevented monopolies, and protected common usage within the trade.(22) When the government considered raising revenue through the sale or lease of public mining lands, the mining community feared for the security of their investments.(23) As such, miners lobbied for regulations that would protect their claims, prevent monopolization by speculators, and provide incentive for future prospecting.(24)

      Similarly, as waves of new settlers moved out to the western frontier, they indiscriminately laid claims to parcels of public land. The Homestead Act of 1862(25) authorized such claims.(26) Considering the vast area of unknown land, actual administration of property transactions seemed implausible.(27) Nevertheless, new settlers needed some means to establish property rights.

      In 1866 Congress responded to these demands by enacting section 8 of An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes,(28) later recodified as R.S. 2477.(29) Section 8, which focused on access rights to the land claims of miners, settlers, and local governments, simply stated: "[t]he right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted."(30) Thus, any individual or government body could use this self-executing remedy to protect existing roads and establish new access roads to mineral claims, private homesteads, and local towns or transportation arteries.(31)

      The West grew up around these roads.(32) By legally recognizing access routes, R.S. 2477 legitimized an otherwise indefensible claim.(33) The statute required only that a private or governmental claimant establish a right of way on open, unreserved public lands.(34) Courts later determined that the grant became effective "upon construction or establishing of highways, in accordance with the State laws."(35) Neither federal nor state governments concerned themselves with notation or recording of the rights of way.(36) With R.S. 2477 authority, state and local governments, as well as private citizens, constructed thousands of miles of roads across western public lands.(37)

   2. The Repeal of R.S. 2477 by FLPMA

      After 110 years of silence, Congress repealed R.S. 2477 with the Federal Land Policy Management Act of 1976 (FLPMA).(38) R.S. 2477 had a very specific purpose: to provide free access and transportation to a burgeoning nation.(39) FLPMA departed from such a give-away policy in favor of a "philosophy of retention and management to maximize the multitudinous interests in the [public] lands."(40) Public opinion and congressional action rejected the goals of R.S. 2477 because of a new emphasis on public ownership and the prevention of undue degradation of federal lands.(41)

      Nevertheless, Congress chose to explicitly preserve all R.S. 2477 rights of way in existence on the date of FLPMA's enactment.(42) In place of R. S. 2477, FLPMA provided other means of obtaining access across federal lands.(43) Specifically, access is available through: 1) the privilege of casual use for informal access without special permission;(44) 2) the Alaska National Interest Lands Conservation Act (ANILCA)(45) for access across federal lands to mining, livestock, and other valid uses;(46) and 3) Subchapter V of FLPMA for permitted rights of way.(47) Thus, if an R.S. 2477 claim is found invalid, access may still be available through alternative means.(48)

   3. The Present Dilemma

      In August 1984, the federal government asserted itself by proposing regulations that decided how the grandfathered R.S. 2477 claims should be recognized.(49) The Department of the Interior (DOI) emphasizes four reasons for regulations: 1) current confusion of all parties as to the validity of unresolved claims; 2) frustration of federal land managers unable to plan without knowledge of land claims; 3) fear for the preservation of natural resources in the face of potential road development; and 4) concern that mere paths might qualify as highways under tax state laws.(50) In general, these concerns arise from competing views on the purposes of federal land management.(51) State and county governments prioritize roads and economic development over reserving more state lands for federal uses because their citizens depend on access to farms, ranches, schools, hospitals, and towns.(52) In contrast, DOI is mandated by statute to manage the lands for the public welfare.(53)

      The...