Congressional Approval is Required for rules and regulations that pertain to the validity recognition or management of RS2477 roads

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;

1. Examining to determine the RS 2477 status of a right of way;
2. Implementing organizational goals concerning RS 2477 rights of way through planning, organizing, directing, and controlling people and resources;
3. 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.

All actions by federal land managers are limited by the duty to honor these vested property rights and they have no authority to take any 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 which 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, the state, or 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;

1. 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;
2. Petitioning the County Board of Supervisors to establish the formal process to establish, alter, or abandon an RS 2477 right of way, as required by ARS 28.6701.
3. Establishing an order from a court of competent jurisdiction as required by ARS 37.931