Federal Laws and Agency Regulations related to Revised Statute 2477
This chapter includes 3 Sections discussing the key components of past and current laws, agency regulations, and court decisions that have governed Revised Statute 2477 rights-of-way for over a century.
Early Federal Regulations
The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.Section 8 of the Mining Act of 1865 Revised Statute 2477 43 U.S.C. 923.
Section 8 of the Mining Act of 1865 was a self-executing grant issued by the US Congress that allowed western settlers to establish highways over federal lands without any authority from the government. Consider the following federal regulations that remained in place for over 110 years.
This grant [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 this act, as no action on the part of the Federal Government is necessary.56 I.D. 533 (May 28, 1938).
No application should be filed under R.S. 2477, as no action on the part of the Government is necessary… Grants of rights-of-way referred to in the preceding section become effective upon the construction or establishment of highways, in accordance with the State laws, over public lands, not reserved for public uses.43 C.F.R. 2822.1-1, 2822.2-1 (October 1, 1974) See also, 43 C.F.R. 244.54 (1938); 43 C.F.R. 244.58 (1963).
The fact that no documentation was required to construct a RS 2477 right-of-way, major obstacles arise when trying to prove that a road was constructed prior to 1976. However, in many cases, documentation of a particular right-of-way is deep in the County Recorders office on historical survey plats. You can also find most roads over federal lands documented on official USGS maps.
There are multiple components to this short one-sentence law that have been consistently applied since its passage by the US Congress. As you can imagine, there are hundreds of court decisions and opinions that set the precedent and interpret this law in different ways
The Department also recognized the role of state law when making representations to the courts. “The parties are in agreement that the right of way statute is applied by reference to state law to determine when the offer of grant has been accepted by the construction of highways.” Wilkenson v. Dept. of Interior of the United States, 634 F. Supp. 1265, 1272 (D. Colo. 1986) (citation omitted).
The Mining Act of 1865 was repealed by section 706(a) of the Federal Land Policy Management Act (FLPMA). However, FLPMA strictly declares that Revised Statute 2477 rights-of-way shall not be terminated, and all actions by the Secretary shall be subject to RS 2477 rights. Consider the following existing provisions in the Federal Land Policy Management Act:
Debates in the various committees of the legislative branch describe the legislative intent of sections 701(a), 43 U.S.C. 1701 note (a), 701(h), 43 U.S.C. 1701 note (h), and 509(a), 43 U.S.C. 1769(a). These sections of FLPMA were specifically added to protect the property rights of the state and its citizens.
Senator Stevens, of Alaska, expressed concern that rights to “De Facto public roads” established across public lands and roads “that through tradition, through usage, through the passage of time, in fact, have become public access roads or highways” would be jeopardized by the repeal of R.S. 2477. 120 Cong. Rec. 22283-22284 (1974).
Senator Haskell, of Colorado, speaking in favor of the legislation (S-424), stated: “if a strip of land is being used for a highway over public land in accordance with State law at the time of enactment of this bill, then that grant of right-of-way is preserved by reason of section 502 of the bill.” Id. at 22284 July 8, 1974, Vol. 120, Part 17.
“It was not the intent of the proposed rule making, nor is it the intent of this final rule making, to diminish or reduce the rights conferred by a right-of-way granted prior to October 21, 1976…. In addition, if questions should arise regarding the rights of a right-of-way holder under a grant or statute, the earlier editions of the Code of Federal Regulations on rights-of-way will remain available to assist in interpretation of the rights conferred by the grant or earlier statute… In carrying out the Department’s management responsibilities, the authorized officer will be careful to avoid any action that will diminish or reduce the rights conferred under a right-of-way grant issued prior to October 21, 1976.”51 Fed. Reg. 6542 (February 25, 1976).
In 1986, the Department recognized its duty to honor prior, valid existing rights during the rulemaking process for 43 U.S.C. 2800.
“A right-of-way issued on or before October 21, 1976, pursuant to then-existing statutory authority is covered by the provisions of this part unless administration under this part diminishes or reduces any rights conferred by the grant or the statute under which it was issued, in which event the provisions of the grant or the then-existing statute shall apply.”43 U.S.C. 2801.4 (February 25, 1986).
Two previous Department of Interior memorandums were issued post-FLPMA that emphasized department policy concerning RS 2477 rights of way. Interior Secretary Donald Paul Hodel issued a Memorandum on December 7, 1988 (B.L.M. Manual 2801, Appendix 3) concerning the department policy with RS 2477 rights of way. This memorandum is significant in two ways. First, it illustrates the department’s historic policy position on RS 2477 and includes the application of State Law. Second, It shows how far federal land managers have departed from this long-standing precedent. In the memo, Secretary Hodel writes, “The existence or lack of existence of such highway R/Ws has material bearing on the development and implementation of management plans for conservation system units and other areas of Federal lands.”
In 1990, Secretary Michael J. Penfold of the Department of Interior issued another department memo expanding on Secretary Hodel’s 1988 memo and states the following, “It should be emphasized that the Secretary’s policy (issued 12/7/88) provides the necessary guidance and direction in regard to most issues relative to RS-2477 R/Ws (see B.L.M. Manual 2801, Appendix 3). To briefly reiterate the policy, please remember that under the grant offered by RS-2477 and validly accepted, the interests of the Department are that of the owner of the servient estate and adjacent lands/resources. In this context, the Department has no management control under RS-2477 over proper uses of the highway and highway R/W unless we can demonstrate unnecessary degradation of the servient estate (BLM Manual 2801.48 B).”
Secretary Hodel recognized that the existence of a RS 2477 right of way does not prohibit the Department of the Interior or Bureau of Land Management from carrying out their duties under the various laws of the United States and acknowledged that land use planning is subject to the existence of such rights.
Congressional Approval Required
Section 108 of The Omnibus Consolidated Appropriations Act of 1997 prohibits any agency of the federal government from enacting any rule or regulation concerning the validity, recognition, or management of RS 2477 roads. Section 108 became permanent law after the Comptroller General issued Decision B-277719 in 1993 and states, “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.”
RS 2477 rights of way inherently contain a bundle of rights governed by state law which the US Congress expressly protects by including, “recognition, management, or validity” in the text of Section 108. These rights include but are not limited to, the ability to maintain the right of way as part of the county road system; improving the right of way with bridges, culverts, and pavement; guaranteeing use by the public, and enforcing state law and county ordinances.
Section 108, RS 2477 prohibitions include;
- Examining to determine the RS 2477 status of a right of way;
- Implementing organizational goals concerning RS 2477 rights of way through planning, organizing, directing, and controlling people and resources;
- Determining the legal sufficiency to distinguish whether RS 2477 does or does not apply to a right of way.
The existence of roads on public lands that are used by registered motor vehicles as well as the limitations placed on federal land managers do not prevent them from completing their objective to protect riparian areas, endangered species, or natural resources concerning the adjacent lands that are outside of the scope of the right of way. As recognized in Secretary Hodel’s 1988 memo, the scope of RS 2477 rights of way include “Facilities such as road drainage ditches, back and front slopes, turnouts, rest areas, and the like, that facilitate use of the highway by the public are considered part of the public highway R/W grant.” These interests include dispersed camping areas as part of the RS 2477 rights of way.
Action by federal land managers are limited by the duty to honor these vested property rights and they have no authority to issue the proposed action to close roads or dispersed campsites within RS 2477 right of way. As with any right-of-way easement, the federal government, as the servient estate, has no right to interfere with the lawful use of the right of way by the dominant estate that guarantees use to the Public.
Subject to the limited proprietorial interest only legislative jurisdiction enumerated in Article 3 Section 8 Clause 17 of the US Constitution, and supported by the absence of cession statutes of the State of Arizona, the burden of proof is on the servient estate to illustrate that public land users and the county are imposing an undue burden on the limited interest of the federal government. In this case, the County Sheriff and state law enforcement are granted the authority by the Arizona Constitution to enforce state laws. Including within RS 2477 rights of ways.
If an undue burden is imposed on the limited interest of the federal government inside the scope of a RS 2477 right of way due to motorized use, federal land managers should consider;
- Working with the county Sheriff and state law enforcement to establish a task force to hold individuals accountable for violating state and federal law on public lands and rights of way;
- Petitioning the County Board of Supervisors to establish the formal process required by Arizona law to establish, alter, or abandon a RS 2477 right of way as required by ARS 28.6701.
- Establishing an order of a court of competent jurisdiction as required by ARS 37.931
Federal land managers often cite 43 CFR Part 8340 as the mechanism giving them authority over RS 2477 roads which was implemented in response to Executive Order 11644 issues by President Richard Nixon in 1972. They falsely apply 43 CFR Part 8340 to roads that don’t meet the applicability standards set in 43 CFR 8340.0-8 which state, “The regulations in this part apply to all public lands, roads, and trails under administration of the Bureau.” As displayed above, per Section 8 of the Mining Act of 1865, section 108 of the Omnibus Consolidated Appropriations Act, and Comptroller General Decision B-277719, the federal government is strictly prohibited, by federal law, from applying administrative authority over RS 2477 rights of way.
43 CFR 8340.0-5(a) defines an “off-road Vehicle” as, “any motorized vehicle capable of, or designed for, travel on or immediately over land, water, or other natural terrain” and shares the same definition with Executive Order 11644. This definition applies to cross-country travel over natural terrain and does not grant the Bureau authority to close valid and established RS 2477 rights of way.
During the rule-making process for Executive Order 11644, the Bureau wrote the following in the Federal Register.
“There were many suggestions to establish criteria that would confine off-road vehicles to designated roads and trails. Executive Order 11644 provides for the designation of “areas and trails” rather than the more restrictive “roads and trails” … Numerous comments wanted the regulations to control hunting, firearms and registration as they relate to off-road vehicles. These are activities in which the States have traditionally established standards of control, and there is no intent to interfere in this function. Standards of control in these regulations have been limited to situations where the States either have no controls, or their controls may be considered insufficient for off-road vehicle activities on public lands.”44 FR 34834 June 15, 1979
The numerous federal laws cited by the Bureau in the Environmental Impact Statement do not grant the Bureau authority over Revised Statute 2477 rights of way. They simply direct the Bureau to manage public lands under a multiple uses and sustained yield regimen. As described in this commend above, FLPMA declares that all actions by the Bureau are subject to valid existing rights of way and other property and mineral rights.
The Bureau may carry out its mission under these laws without interfering with the fundamental property rights granted to the state and we the people. As described by Interior Secretary Hodel’s 1988 Memo, the scope of an RS2477 right of way, which defines an area of land where state law is applicable, includes any area that facilitates the use of the right of way. Therefore, campsites, roadside pull-offs, parking areas, trailheads, and other aspects that facilitate the use of the road, are included in the rights granted by Congress in the Mining Act of 1865.