Revised Statute 2477
The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.
What is Revised Statue 2477?
It’s Your Fundamental Right-To-Way Across The Earth.
Revised Statute 2477 is a land grant passed the U.S. Congress in 1866. It granted the right of way to all U.S. Citizens to construct highways over public land that were not reserved for public use. The statute was passed into law as Section 8 of the Mining Act of 1866 and remained in place until its repeal in 1976. It is directly responsible for the establishment of interstate, state, county, and city road systems across the western United States. It is also responsible for the construction of forest roads, mining roads, canals, ditches, bridges, and other fundamental access paths that exist today.
“The Right-Of-Way”
The Revised Statute 2477 Right of Way is a human right granted by the U.S. Congress in 1866. It recognizes the fundamental right to travel across the Earth over unclaimed land. Part of the Mining Act of 1866, it allowed the construction of roads, trails, bridges, canals, railroads, and other recognizable paths known as “highways.”
“For The Construction of Highways”
Construction of an RS 2477 highway was established by repeatedly using the same path over the earth until a visible route was created. The courts have ruled that animal trails, footpaths, bridleways, and other recognizable paths fall under the term “highway” and are RS 2477 rights-of-way.
“Over Public Land, Not Reserved For Public Use,”
The RS 2477 right-of-way must have been constructed on public lands that were not reserved for the public, or claimed under the various homestead and mining laws. Construction on an RS 2477 right-of-way must have begun before the land was withdrawn from public entry.
“Is Hereby Granted.”
RS 2477 was a grant that was authorized upon the passage of the Mining Act of 1866. It did not require authorization, documentation, or recognition of any kind to build a road on public lands.
How is Revised Statute 2477 a property right?
Rights are reserved in the inherent nature of a Right-Of-Way.
Since the beginning of time, rights-of-way have been considered public spaces and are fundamental to the public forum. They are among several places where individuals cannot be trespassed without committing a crime and have an unalienable right to free speech and communication. Rights-of-way facilitate parading, protesting, dissemination of information, exploration, commerce, news gathering, and the multiple-use doctrine.
RS 2477 rights-of-way contain a bundle of rights, including the right to use, the right to maintain, and the right to improve. These rights are reserved for the states and their citizens. The scope of these rights covers a width specified by state law and includes all things that facilitate the use of the right-of-way. This may include roadside pull-offs, bridges, drainage ditches, culverts, and the like.
The Blacks Law Dictionary defines a Right-Of-Way as the following:
“The right of passage or of way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.”
Does RS 2477 Still Apply?
Yes, even though the Federal Land Policy Management Act repealed RS 2477, it recognizes RS 2477 Rights-of-way as valid.
FLPMA repealed the original RS 2477 statute. However, three separate sections of FLPMA declare that Revised Statute 2477 rights-of-way shall not be terminated, and all actions by the secretary shall be subject to these rights.
However, the application of RS 2477 is often overlooked or ignored in favor of new right of way standards incentivized by federal funding.
The abandonment of RS 2477 right-of-way standards is incentivized by federal transportation funding that demands compliance with FLPMA and NEPA standards and is contradictory to RS 2477. The FLPMA provides new standards for rights-of-way on federal lands, which are often applied in favor of RS 2477 to acquire federal funding. These standards lack the protections of RS 2477 and are permitted by federal agencies rather than granted by the U.S. Congress.
The Federal Land Policy Management Act of 1976 (FLPMA) states:
“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(a), 43 U.S.C. 1701 note (a).
“All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”
FLPMA 701(h), 43 U.S.C. 1701 note (h).
“Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted.”
FLPMA 509(a), 43 U.S.C. 1769(a).
During the rule-making process, multiple debates took place regarding the repeal of Revised Statute 2477. These debates, published in the Federal Register, are fundamental to understanding the legislature’s intention for these three sections of FLPMA.
“It was not the intent of the proposed rulemaking, nor is it the intent of this final rulemaking, 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)
RS 2477 Right-Of-Way Timeline
1866
Mining Act of 1866
The Mining Act of 1866 was written and introduced by Senator William M. Stewart from Nevada.
1870
Senate Bill 16 – Proposed Amendment to the Mining Act of 1866
An amendment is proposed to grant special rights to the Sutro Tunnel in Nevada.
Senate Bill 16 – Statements of Fact from Senator Stewart
The author of The Mining Act of 1866 opposes the proposed amendment and provides valuable insights into the legislative intent of RS 2477.
1938
The Department of Interior issues regulations on RS 2477 rights of way.
“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.”
43 C.F.R. 244.54 (1938)
1972
President Richard Nixon issues Executive Order 11644 to manage off highway vehicle use of public lands.
1974
Regulations on RS 2477 rights of way amended
“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).
1976
Federal Land Policy Management Act (FLPMA) becomes law
The Federal Land Policy Management Act, otherwise known as the BLM Organic Act, established the Bureau of Land Management’s multiple-use mandate and repealed the Mining Act of 1866.
1979
BLM establishes rules in response to executive order 11644
New rules were established by the BLM to define and govern “off-road vehicles” and place prohibitions on traveling over “natural terrain” in certain geographical areas.
1986
Regulations on RS 2477 rights of way post-FLPMA
“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).
1988
Interior Secretary Donald Hodel issued a memorandum on RS 2477
This memorandum directed federal land managers under the Department of the Interior on how to govern roads on federal lands. The memorandum is significant because it demonstrates how the federal government managed roads on federal lands prior to the Federal Land Management Policy Act.
1990
BLM director Michael J. Penfold issues a memorandum expanding on Hodel’s memorandum.
Bureau of Land Management Director Michael J. Penfold expands on Interior Secretary Hodel’s 1988 memorandum by issuing agency guidance for the governance of RS 2477 rights-of-way.
1993
Report to Congress on R.S. 2477 – The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands
The DOI was directed to prepare a report to Congress on a number of aspects of R.S. 2477. The directive to prepare the report requested that the following information be addressed:
- The history of rights-of-way claimed under R.S. 2477.
- The likely impacts of current and potential claims of such rights-of-way on the management of the federal lands.
- The likely impacts of current and potential claims of such rights-of-way on the access to federal lands, state lands, private lands, Indian and Native lands.
- The likely impacts of current and potential claims of such rights-of-way on multiple-use activit
- The current status of such claims.
- Possible alternatives for assessing the validity of such claims.
- Alternatives to obtaining rights-of-way.
- Sound recommendations for assessing the validity of claims, consonant with the intent of Congress in enacting R.S. 2477 and FLPMA, that mandated policies of retention and efficient management of the public
1994
The Department of the Interior proposes agency regulations regarding RS 2477
The Department of the Interior attempted to install regulations for the administrative treatment of RS 2477 rights-of-way. This action by the department started a firestorm of opposition across the country and never came to fruition.
1995
H. RES. 25 Requesting that the Secretary of the Interior withdraw proposed regulations concerning rights-of-way granted under section 2477 of the Revised Statutes
The 104th Congress introduced H. Res. 25, a resolution submitted by Mr. Orton, Mr. Hansen, and Mr. Young of Alaska, urging the Secretary of the Interior to withdraw proposed regulations related to rights-of-way granted under section 2477 of the Revised Statutes. The resolution highlights the historical significance of Section 2477 and emphasizes that valid rights-of-way were conveyed until the repeal by the Federal Land Policy and Management Act of 1976, which recognized and protected existing rights-of-way. The resolution expresses concern that the proposed regulations conflict with established law, legislative history, and departmental decisions, suggesting an overreach of authority. It concludes by requesting the Secretary of the Interior to withdraw the proposed regulations, redraft them to align with relevant laws and precedents, and reissue them for public review and comment.
Revised Statutes 2477 Rights-of-Way Settlement Act is introduced
The RS 2477 Settlement Act was introduced to settle disputes between states and the Federal Government concerning RS 2477 roads but failed to become law. The same legislation has been repeatedly introduced over the past 25 years.
The legislation has faced criticism from RS 2477 advocates due to its requirement to “claim” RS 2477 rights of way that were already granted to the people through the Mining Act.
Hearing before the subcommittee on National Parks, Forest, and Land on H.R. 2081
The subcommittee met pursuant to call at 10:00 a.m. in room 1324 Longworth House Office Building Hon. James Hansen chairman of the subcommittee presiding. During this meeting, the Bureau of Land Management provided testimony to the committees opposing the RS 2477 Settlement Act.
1996
Committee on Energy and Natural Resources Report 104–261
The Senate Committee on Energy and Natural Resources, in its report (Senate Report 104–261), discusses S. 1425, the Revised Statutes 2477 Rights-of-Way Settlement Act. The report, dated May 9, 1996, recommends the bill’s passage with an amendment. The purpose of S. 1425 is to recognize the validity of rights-of-way granted under Section 2477 of the Revised Statutes. The amendment specifies that no final rule or regulation related to these rights-of-way shall take effect unless authorized by an Act of Congress enacted after the date of this Act. The Committee emphasizes the complexity and controversy surrounding R.S. 2477 rights-of-way claims, especially in Alaska and Utah. The bill, as amended, aims to allow the Department of the Interior to develop new regulations but prohibits their implementation until expressly approved by Congress. The report outlines the legislative history, committee recommendations, and the estimated cost and budgetary considerations. It notes that the bill would not affect direct spending or receipts and contains no intergovernmental or private sector mandates. The report also requests executive communications from relevant departments and states that no changes in existing law are made by the bill.
1997
Omnibus Consolidated Appropriations Act of 1997
The US Congress included prohibitions in the annual Appropriations Act to prohibit federal agencies from establishing any rule or regulation pertaining to the validity, recognition or management of RS 2477 rights-of-way without the express authorization of the US Congress.
Comptroller General Decision B-277719
The Comptroller General issued an opinion that made section 108 of the Omnibus Consolidated Appropriations Act of 1997 permanent law. This demands that any rule or regulation pertaining to the validity, recognition, or management of RS 2477 rights-of-way be approved by an act of Congress.
2001
National Management Strategy for Motorized Off-Highway Vehicle Use on Public Lands
The Bureau of Land Management’s National Management Strategy addresses the surge in motorized off-highway vehicle (OHV) use on public lands. It aims to balance public recreation with conservation, offering guidance on roads, trails, and related activities. The strategy tackles issues like designations, regulations, resource management, education, law enforcement, and budgeting. Emphasizing increased funding and staffing, it prioritizes OHV management. Acknowledging off-road use as acceptable if aligned with resource objectives, it draws on public input to compile a “Motorized OHV Management Field Guide.” The goal is to implement solutions, protect resources, and efficiently address challenges tied to the rising popularity of motorized OHV use on public lands.
2002
BLM implements the Travel Management Rule and removes RS 2477 protections
The Bureau of Land Management implaments Travel Management Rules and repeals 43 U.S.C. 2801.4 installed during the rulemaking process for FLPMA that recognized RS 2477 rights-of-way.
2003
H. R. 1639 – R.S. 2477 Rights-of-Way Act of 2003
Mr. UDALL of Colorado introduced R.S. 2477 Rights-of-Way Act of 2003 To provide a means of resolving claims regarding the continued existence of rights-of-way under former section 2477 of the Revised Statutes, which was repealed by the Federal Land Policy and Management Act of 1976.
CRS Report for Congress – Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers of Interest
The CRS report explores the challenges in defining and validating these rights. Additionally, it discusses Section 315 of FLPMA, allowing the Secretary of the Interior to issue disclaimers of interest, which has become a contentious issue due to recent amendments and a Memorandum of Understanding (MOU) between Utah and the Department of the Interior. The controversy involves concerns about Congress’s role in approving regulations related to R.S. 2477 and the lack of clearly defined criteria for validating claims. The report also mentions H.R. 1639, a proposed legislation in the 108th Congress aiming to establish a process for determining the validity of R.S. 2477 claims. Overall, the report highlights the complexities and disagreements surrounding the resolution of R.S. 2477 validity issues, emphasizing the need for clear standards and the involvement of Congress and the courts in the decision-making process.
2004
General Accounting Office Opinion B-300912
The letter to Senator Bingaman addresses concerns about the Department of the Interior’s recognition of rights-of-way under Revised Statute 2477 (R.S. 2477) using a Federal Land Policy and Management Act (FLPMA) disclaimer process in a Memorandum of Understanding (Utah MOU). It evaluates the legality of the Department’s 2003 disclaimer amendments (2003 Disclaimer Rule) and the Utah MOU in relation to Section 108 of the Department of the Interior and Related Agencies Appropriations Act, 1997. The conclusion is that the 2003 Utah MOU, not the 2003 Disclaimer Rule, is prohibited by Section 108. The opinion asserts that, based on statutory construction and administrative law, FLPMA § 315 generally authorizes the Department to disclaim U.S. interests in R.S. 2477 rights-of-way. Legal views from the Department and reviews of responses to inquiries by Senators Bingaman and Lieberman inform the analysis. The opinion notes the absence of court rulings on the legal issues and emphasizes a balance supporting the Department’s authority under FLPMA § 315 amid controversy.
2006
CRS Report for Congress – Federal Lands, R.S. 2477, and “Disclaimers of Interest”
On January 6, 2003, the Department of the Interior published broad new “disclaimer of interest” regulations under § 315 of the Federal Land Policy and Management Act of 1976 and stated that disclaimers would be used to acknowledge R.S. 2477 rights of way. Congress has directed that no rules “pertaining to” recognition or validity of an R.S. 2477 rights of way can be effective unless authorized by Congress, and the use of disclaimers in the R.S. 2477 context may be controversial. More recently, DOI has issued new guidance regarding recognition of R.S. 2477 rights of way that again mentions the use of disclaimers for that purpose. This report discusses R.S. 2477 rights of way, the disclaimer regulations and DOI guidance, the congressional directive, and legislation. It will be updated as warranted.
RS 2477 Right-of-way History
The first right-of-way laws were enacted by the Continental Congress in 1777 regarding railroads and navigable rivers shortly after King George III’s declaration of the Proclamation Line. In 1785, the Land Ordinance was enacted and established the Public Land Survey System, and a mechanism to dispose of newly acquired western lands. It wasn’t until the Reconstruction Era that RS 2477 became law.
The Mining Act of 1866 remedied multiple problems during the reconstruction era. Up until that time, wagon roads, mail roads, and railroads were granted by individual acts of Congress. With the vast western expansion, the federal government couldn’t keep up with the demand for access routes administratively or financially. It solved issues relating to land claims under the Land Ordnance of 1785, which left land owners disputing rights-of-way to access abutting property lines. It settled multiple disputes with western miners over haulage tunnels, accessing mining claims, constructing canals, and even faced an amendment to benefit the Comstock.
The Mining Act was among multiple mining and homestead laws that encouraged western expansion by poor Colonists, immigrants, and newly freed slaves. It remidied mutiple issues relating to right of way disputes between miners, and helped settle issues between abutting land owners arrising from the land ordinance of 1785.
The Mining Act of 1866 was written by Senator William Morris Stewart of Nevada. Senator Stewart was a mining legend and a fearless man who served as acting Attorney General of California before serving 29 years in the US Congress representing Nevada. He spent a majority of his adult life as a lawyer litigating mining disputes and developed the first mining laws during his position as acting Attorney General of California. He was a fundamental contributor to the Reconstruction Era as the author of the 15th Amendment to the US Constitution which gave newly freed slaves the right to vote.