April 1993

I have reviewed the Draft Report to Congress: R.S. 2477–The History and Management of the R.S. 2477 Rights-of-Way Claims on Federal and Other Lands (Draft Report to Congress) and commend the Bureau of Land Management for its hard work. However, I have concerns with a few of the legal conclusions found in that report.

My primary concern is the potential for a too expansive reading of the applicability of statutes of limitations to R.S. 2477 routes. Arguments have been made that if a state does not affirmatively assert R.S. 2477 rights-of-way on federal lands after those lands become part of a forest reserve or wilderness area, then the federal government has an automatic adverse claim to the R.S. 2477 rights-of-way. It is further claimed that the R.S. 2477 rights-of-way can be permanently lost if a state does not affirmatively claim the existence of the R.S. 2477 rights-of-way either administratively or through a quiet title action. It has been further asserted that if no quiet title action is filed within 12 years from the creation of the “adverse” federal claim, then no quiet title action can ever be made because the statute of limitations would have expired. This theory is wrong on a number of counts.

First of all, the creation of R.S. 2477 rights-of-way are governed by state law–a state of affairs that the federal government has acceded to for generations. Second, R.S. 2477 rights-of-way are property rights belonging to the people of the various states through their state governments. These property rights are fully protected by State and Federal Constitutions. Third, because the nature and scope of the property rights in R.S. 2477 rights-of-way are governed by state law, the loss of those property rights through such common law doctrines as abandonment and adverse possession must also be governed by state law. Therefore, the usual elements for adverse possession must be present as defined in the law of the various states. Such elements usually include a requirement that the adverse possession be open and notorious for a minimum number of years. Only after these conditions are met would any particular statute of limitations begin to run. Furthermore, a crucial element of the law of adverse possession in every state is that adverse possession does not apply against state sovereigns. In other words, a state government cannot lose its property through adverse possession. I shall address several of these points in more detail below.

A. The Creation and Existence of R.S. 2477 Rights-of-Way Is Governed by State Law

Despite the statement, in the Draft Report to Congress at Page 13, that the question of whether state or federal law should apply to the creation of R.S. 2477 rights-of-way is not well understood (at least by the Congressional Research Service), the federal courts have already made it plain that state law will be followed. As the courts have stated, the establishment of an R.S. 2477 right-of-way involves both the application of federal law (R.S. 2477) and state law as to whether a highway has actually been created. In United States v. Gates of the Mountains Lakeshore Homes, Inc., 732 F.2d 1411 (9th Cir. 1984), the Ninth Circuit determined that the federal government could, if it so chose, acquiesce to a state law determination of what was and what was not a valid R.S. 2477 right-of-way. In that case, the court was confronted with an attempt to place utility lines along an alleged R.S. 2477 right-of-way.

While the court ultimately found that another right-of-way law governed utility corridors and that the existence of an R.S. 2477 right-of-way was irrelevant as to whether utility lines could be put down, the court also provided some dicta concerning how R.S. 2477 rights-of-way are established. The court began by noting that “[t]he scope of a grant of federal land is, of course, a question of federal law. But in some instances `it may be determined as a matter of federal law that the United States has impliedly adopted and assented to a state rule of construction as applicable to its conveyances.’” 732 F.2d at 1413 (quoting United States v. Oregon, 295 U.S. 1 (1935)) (citation omitted). The court went on to say that a different federal statute controlled utility easements and, therefore, even if state law addressed the issue of utility easements on state highways, federal law would control.

After Gates was decided, the Tenth Circuit Court of Appeals explained further that in the case of R.S. 2477 routes, BLMhad affirmatively assented to state law determinations. Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988). The court referred to Gates noting that the Gates court recognized that the United States could assent to a state law understanding of the creation of an R.S. 2477 highway. The Sierra Club court continued to note that the only reason why the court in Gates did not follow state law was because it was not dealing with an R.S. 2477 right-of-way but with a utility easement covered by different statute.

Sierra Club makes it clear that state law plays a significant role in the determination of the existence and scope of R.S. 2477 rights-of-way. In response to Sierra Club’s argument that state law “plays no role whatsoever,” the court responded that Sierra Club’s position “clearly conflicts with more than four decades of agency precedent, subsequent BLM policy as expressed in the BLM Manual, and over a century of state court jurisprudence.” 848 F.2d at 1081.

Most instructive of all, perhaps, is Wilderness Society v. Morton, 479 F.2d 842, 882-83 (D.C. Cir. 1973), where the District of Columbia Circuit Court of Appeals considered a challenge to Alaska’s assertion of an R.S. 2477 right-of-way to be used for the trans-Alaska pipeline. In that case, the purpose for transporting oil was found to be an appropriate application of R.S. 2477. The court also noted that “[s]ince the section acts as a present grant, it is normally not even necessary for the builder of the highway to apply for a right-of-way. [Citing federal regulations.] `No application should be filed … as no action on the part of the [federal] Government is necessary.’” 479 F.2d at 882 n.90.

The Wilderness Society court continued to note that because the land in question was closed to entry prior to the establishment of the road, in that particular circumstance, the government was required to affirmatively grant the rights-of-way. However, in normal circumstances, it is clear that no affirmative action is required by the federal government.

These federal cases are also consistent with the law of the western states. For example, in California, it is recognized that the establishment of an R.S. 2477 right-of-way is dependent upon the state definition of a highway. Thus, in Ball v. Stephens, 68 Cal. App. 2d 843, 846, 158 P.2d 207 (1945), a California Court of Appeal held that “in order that a road should become a public highway … it [must] be established in accordance with the laws of the state in which it was located.” The court continued to note that in California the public law relating to the establishment of highways read in part that

“public highways are roads, streets, alleys, lanes, courts, places, trails, and bridges, laid out or erected as such by the public, or if laid out or erected by others, dedicated or abandoned to the public, or made such in actions for the partition of real property.”

Id. at 846 (quoting Section 2618 of the California Political Code of 1883).

The court continued to note that “[d]edication could also be effected without action by the state or county.” Id. at 846 (emphasis added). What was needed is evidence of sufficient public use.(1) Id.

Thus, under the law of California, a road or trail could become a public highway merely through development and use. No affirmative steps by the state or local government were required. If, at the time the highway was created, it was on nonreserved federal land, it would be an R.S. 2477 right-of-way. Note that this criteria is not dependent upon there being any formal acceptance of the road by the federal government.

Thus, these cases indicate that while the establishment of an R.S. 2477 right-of-way might be a matter of federal law, the United States has deferred to state law interpretations of when a highway is established.

B. R.S. 2477 Rights-of-Way Are Constitutionally Protected Property Rights

The creation of R.S. 2477 rights-of-way follows from the great tradition of settling our nation through the creation of private property and economic rights in the sparsely populated western territories. The statutory framework and milieu which resulted in R.S. 2477 also resulted in the homestead acts and mining laws (in fact, R.S. 2477 grew out of the mining laws). It is beyond debate that the property rights created with the homestead and mining laws are protected by the Constitution–even if full fee-simple title was not created. Thus, just because an R.S. 2477 right-of-way is technically only an easement, it is also a full property right protected by the Just Compensation Clause of the Constitution. It carries the same protected constitutional status as does an unpatented (no full fee title) mining claim. See Wilbur ex rel. Krushnic, 280 U.S. 306, 316-17 (1929) (“The [unpatented mining] claim is property in the fullest sense of that term,” and the owner’s “possessory right … is as good as though secured by patent.”). For this reason, the federal government cannot abrogate R.S. 2477 rights-of-way at will just because they have become “inconvenient” or contrary to modern notions that we should not have settled and populated the West.

As the United States Supreme Court held over a century ago:

Under every established government, the tenure of property is derived mediately or immediately from the sovereign power of the political body, organized in such mode or exerted in such way as the community or State may have thought proper to ordain. … It is owing to these characteristics only … that appeals can be made to the laws either for the protection or assertion of the rights of property. Upon any other hypothesis, the law of property would be simply the law of force. Now, it is undeniable that the investment of property in the citizen by the government, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the State … and the grantee; and both the parties thereto are bound in good faith to fulfill it.(2)

Put more directly, “[t]he owner of personal property cannot be devested of his ownership without his consent, except by process of law.”(3)

C. The Law of Adverse Possession Should Not Apply to the Abrogation of R.S. 2477 Rights-of-Way

On Page 15 of the Draft Report to Congress mention is made of two arguments for the loss of R.S. 2477 rights-of-way–abandonment and adverse possession. Neither of these arguments is applicable here. With respect to abandonment, it makes little sense that in a state like California, where no affirmative action must be taken by the state to confirm an R.S. 2477 right-of-way, there can be abandonment from mere nonaction. Short of an outright quitclaim deed or equivalent, abandonment should not be an issue. Put another way, because the state need do nothing to acquire an R.S. 2477 right-of-way, it hardly makes sense that the state could lose the same right-of-way by continuing to do nothing.

The Draft Report to Congress continues by noting, with respect to the adverse possession theory, that

R.S. 2477 rights-of-way are easements and, therefore, interests in land subject to the quiet title statute. If they are not acted upon within 12 years of the date the Federal Government takes action that is inconsistent with their existence, then arguably, they are gone whether they existed in the first place or not. This would be true where Congress established a wilderness area, where BLM designated an area as a WSA, or where the U.S. Forest Service blocked off a former way and no one had acted on it for over 12 years. The key point to this legal issue is, What action by the Federal Government is required to put others on notice that the Government claims an interest that may defeat the potential R.S. 2477 right-of-way claim sufficient to begin the 12-year period?

Draft Report at 15.

A fundamental problem here is the inapplicability of the 12-year statute of limitations to quiet title actions of this kind brought against the federal government by a state government. 28 U.S.C. 2409a(a) begins by stating:

The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.

This would apply, on its face, to instances where the United States attempted to claim an interest in an established R.S. 2477 right-of-way. Subsection (g) establishes the relevant statute of limitations:

Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued.

(Emphasis added.) The only exception to the exclusion of the states from the statute of limitations is in those cases where the United States or its lessees or grantees have made “substantial improvements or substantial investments … or substantial activities.” 28 U.S.C. 2409a(i). Obviously, the 12-year limitation would not apply to a quiet title action brought by a state when the full extent of the federal government activity is to preclude activity through the creation of wilderness or wilderness study areas.

With respect to private individuals who may wish to bring a claim against the federal government in order to quiet title an R.S. 2477 right-of-way, such an individual (assuming he or she had the standing to bring suit) would only be affected by the 12-year statute of limitations 12 years after the federal government’s claim “accrued.”

Because the federal appellate courts have held that the law surrounding the creation and scope of R.S. 2477 rights-of-way is dependent upon state law, see, e.g., Sierra Club v. Hodel, 848 F.2d 1068, it is necessary to look at the law of adverse possession of the various states before it can be determined that adverse possession can run against a state’s interest in an R.S. 2477 right-of-way. If the federal government’s claim to the rights-of-way is based on abandonment (by the state) or adverse possession (of the federal government over the state property), then it must be noted that in most states a minimum of 5 to 10 years (the exact period is set by each individual state law) must pass before a claim in adverse possession accrues. Only then would the statute of limitations begin to run.

Furthermore, it is the law in most, if not all, states that the law of adverse possession does not apply to property owned by the state sovereign.

Finally, the idea that the creation of a wilderness or wilderness study area could abrogate the existence of an existing R.S. 2477 right-of-way is plainly contradicted by the Wilderness Act of 1964 which, at 16 U.S.C. 1133(c), notes that there shall be no permanent roads “subject to existing private rights.” Also, 16 U.S.C. 1134(b) states that “valid occupancies” are guaranteed “ingress and egress … by means which have been or are being customarily enjoyed.” In addition, nothing in the Wilderness Act serves to provide any notice whatsoever of any sort of abrogation of any valid existing rights–including R.S. 2477 rights-of-way. And in every individual wilderness act passed by Congress, the passage was made subject to “valid existing rights.” See, e.g., Washington State Wilderness Act of 1984, P.L. 98-339, which at Section 4(b), 98 Stat. 302, states that the wilderness areas designated in the Act shall be administered “subject to valid existing rights.” Because the Wilderness Act specifically protects valid existing rights, there is no way that the Act can also be construed to destroy valid existing rights such as R.S. 2477 rights-of-way.

In those few instances where the agents of the federal government may have acted extralegally by physically blocking an R.S. 2477 right-of-way in apparent contravention of the express terms of the statute protecting such “valid existing rights,” it is doubtful that the federal government could acquire such property through “abandonment” or “adverse possession.” Any such action blocking access could not have been lawful in the first place and courts are not likely to allow the federal government to profit from illegal acts of its employees.

In conclusion, the Draft Report to Congress, while representing considerable effort and dedication by the Department of Interior, goes too far in trying to justify the abrogation or nonrecognition of R.S. 2477 rights-of-way. Should Congress adopt its erroneous findings and attempt to retroactively do away with existing R.S. 2477 rights-of-way, or attempt to pretend that many such rights-of-way do not exist in the first place, then there will be a great deal of litigation and a great deal of federal government liability could result.

(1) Thus, the chart on Page 33 of the Draft Report to Congress is in error when it states that there must be “formal acceptance” by the state for there to be an R.S. 2477 right-of-way in California.

(2) West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 532 (1848) (emphasis added).

(3) Dows v. National Exchange Bank of Milwaukee, 91 U.S. 618, 637 (1875).