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Yes, even though the Federal Land Policy Management Act repealed RS 2477, it recognizes RS 2477 Rights-of-way as valid.
FLPMA repealed the original RS 2477 statute.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)
