Chapter #2 Section #2
The Mining Act of 1865 was repealed by section 706(a) of the Federal Land Policy Management Act (FLPMA).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:
FLPMA 701(a), 43 U.S.C. 1701 note (a).
“Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this act.”
FLPMA 701(h), 43 U.S.C. 1701 note (h).
“All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”
FLPMA 509(a), 43 U.S.C. 1769(a).
“Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted.”
Debates in the various committees of the legislative branch describe the legislative intent of sections 701(a), 701(h), 509(a), and the corresponding Codes of Federal Regulations under 43 Part 2800. 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. Section 502 became Section 701 after various amendments.
Roads before October 1976
All existing roads and rights of way were not affected by the passage of FLPMA with the existing Grandfather Clause.
Roads after October 1976
Federal Agencies have legitimate authority over roads built after October of 1976 when Revised Statute 2477 was repealed.
The Federal Land Policy Management Act mandates that all new roads and rights of way over federal land would be permitted by the federal government under the new provisions of FLPMA.