Background

To further settlement of the West, Congress, on July 26, 1866, passed, as part of the Mining Act of 1866, Revised Statutes 2477 (“R.S. 2477”). This statute, although now repealed and 129 years old, still applies to rights-of-way established over federal lands. R.S. 2477 states, in its entirety:

“Sec. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

One way to understand the issues regarding R.S. 2477, is to analogize the statute to relevant contractual concepts. The passage of R.S. 2477 was an offer by Congress for the construction of highways over federal lands. Like any offer, once accepted according to its terms, the offeror is bound.

Many of these access routes have been used for over a century. Many are state highways. All are integral parts of the travel infrastructure that allows business people and other workers, search and rescue crews, law enforcement, hunters, campers, hikers, and all Americans to travel across the vast expanses of federal lands which dominate the West.

R.S. 2477, like all easements, are property rights and are entitled to the same legal protection as any other property right. As a vested property right, an R.S. 2477 right-of-way cannot be “taken” by the federal government without just compensation. See e.g., Block v. North Dakota, 461 U.S. 273, 291 (1983).

Every pertinent court and administrative action (prior to Interior’s recent action) acknowledges that state law provides the basis for determining the existence and scope of R.S. 2477 rights-of-way. See e.g., 43 C.F.R. 2822.2-1 (October 1, 1972); Sierra Club v. Hodel, 675 F.Supp. 594, 604 (D. Utah 1987); U.S. v. Jenks, 804 F.Supp. 232, 235 (D.N.M. 1992); Shultz v. Dept. of Army, 10 F.3d 649 (9th Cir. 1993); Wilkenson v. Dept. of Interior of United States, 634 F.Supp. 1265, 1272 (D. Colo. 1986).

Where not specified, the scope is that which is reasonable and necessary to provide safe travel for legitimate uses. Sierra Club v. Hodel, 848 F.2d 1068, 1084 (1988). Reasonable and necessary improvements for vehicular travel are governed by the American Association of State Highway and Transportation Officials. (AASHTO).(1)

In Utah, R.S. 2477 rights-of-way could be acquired through governmental action or public user for a period of 10 years. Lindsay Land & Livestock v. Churnos, 285 P. 646, 648 (Utah l930) (“It has been held by numerous courts that the grant [under R.S. 2477] may be accepted by public use without formal action by public authorities, and that continued use of the road by the public for such length of time(2) and under such circumstances as to clearly indicate an intention on the part of the public to accept the grant is sufficient.”); see also Boyer v. Clark, 326 P.2d 107, 109 (Utah 1958).

There was never a requirement that the federal government recognize an acceptance. Sierra Club v. Hodel, 848 F.2d 1068, 1084 (1988).

It is essential to keep in mind that R.S. 2477 rights-of-way could only be established across unreserved public lands. That term, as used in R.S. 2477, has never been legally defined. It is clear that creation of a national park or forest, for example, created reservations precluding the creation of new R.S. 2477 rights-of-way. Where reservations did not preclude entry and location, R.S. 2477 acquisition would logically continue as well.

The prospective offer of R.S. 2477 was repealed in 1976 by the Federal Lands Policy and Management Act (“FLPMA”), Pub.L. No. 94-579, 90 Stat. 2793, 43 U.S.C. 1701 et seq.. However, FLPMA specifically protected existing R.S. 2477. See, FLPMA 509(a), 701(a), and 701(h), codified respectively at 43 U.S.C. 1769(a) and 1701, Savings Provisions (a) and (h). Such pre-existing rights-of-way are property rights vested in the holder.

Federal regulatory authority over R.S. 2477 is limited by the obligation to honor the vested property right. Any action by Federal agencies to limit or divest these rights is contrary to established legal principles.

Settled methods of dealing with R.S. 2477 rights-of-way should not be changed. As the Court stated in Sierra Club v. Hodel. “State law has defined R.S. 2477 grants since the statute’s inception. A new federal standard would [create] an administrative dust storm that would choke BLM’s ability to manage the public lands. . . . That a change to a federal standard would adversely affect existing property relationships squarely refutes Sierra Club’s allegation that the use of a state law standard unfairly prejudices the federal government. R.S. 2477 right holders, on the one hand, and private landowners and BLM as custodian of the public lands, on the other, have developed property relationships around each particular state’s definition of the scope of an R.S. 2477 road.”

BLM’s NEPA analysis, insofar as it may impact actions by the holder of an R.S. 2477 right-of-way, must focus on whether any unnecessary or undue impacts would occur. The Department of Interior has defined “unnecessary or undue degradation” as “Impacts greater than those that would normally be expected from an activity being accomplished in compliance with current standards and regulations and based on sound practices, including use of the best reasonably available technology.” Interim Management Policy and Guidelines for Land Under Wilderness Review, 44 Fed. Reg. 72,014 (1979), 48 Fed. Reg. 31,854 (1983).

Interior has imposed a moratorium on administrative actions to resolve validity disputes: “Assertions [of R.S. 2477 rights] should only be examined when the state and/or local governmental entities have shown a compelling and immediate need to have a road acknowledged as a RS 2477 highway.” Instruction Memorandum No. 93-113 dated January 23, 1993.

RS 2477 Legal Citations

Important RS 2477 Federal Cases

The “Burr Trail” cases: Sierra Club v. Hodel, 675 F.Supp. 594 (D. Utah 1987); 848 F.2d 1068 (10th Cir. 1988); 737 F.Supp. 629 (D. Utah 1990); Sierra Club v. Lujan, 949 F.2d 362 (10th Cir. 1991). [Because of the importance of these cases to Utah R.S. 2477 law, specific quotes are provided below.]

Schultz v. Department of Army, 10 F.3d 649 (9th Cir. 1993).

U.S. v. Jenks, 804 F. Supp. 232 (D.N.M. 1992).

U. S. v. Vogler, 859 F.2d 638 (9th Cir. 1988).

Wilkenson v. Dept. of Interior, 634 F.Supp. 1265 (D. Colo. 1986).

United States v. Gates of the Mountains Lakeshore Homes, Inc., 732 F.2d l411 (9th Cir. 1984).

City of Denver v. Bergland, 695 F.2d 465 (1982).

Humboldt County v. United States of America, 684 F.2d 1276 (9th Cir. 1982).

Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir. 1973).

Park County, Montana v. U.S., 626 F.2d 718 (9th Cir. 1980) cert. denied, 449 U.S. 1112 (1981).

United States v. 161 Acres of Land, 427 F. Supp. 582 (D. Colo. 1977).

United States v. Dunn, 478 F.2d 443 (9th Cir. 1973).

United States v. 9,947.71 Acres of Land, 220 F. Supp. 328 (D. Nev. 1963).

Central Pacific Railway. Co. v. Alameda County, 284 U.S. 463 (1932).

State of Colorado v. Toll, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927 (1924).

Important RS 2477 Utah Cases

Jeremy v. Bertagnole, 116 P.2d 420 (Utah 1941) (The right acquired by prescription and use carries with it such width as is reasonably necessary for the public easement of travel, and where the public have acquired the easement the land subject to it has passed under the jurisdiction of the public authorities, for the purpose of keeping the same in proper condition for the enjoyment thereof by the public. The implied dedication of a roadway to automobile traffic is the dedication of a roadway of sufficient width for safe and convenient use thereof by such traffic.).

Lindsay Land & Live Stock Co. v. Churnos, 285 P. 646 (Utah l930) (It was proper and necessary for the court in defining the road to determine its width, and to fix the same according to what was reasonable and necessary, under all the facts and circumstances, for the uses which were made of the road.).

Memmott v. Anderson, 642 P.2d 750 (Utah l982).

Morris v. Blunt, 161 P. 1127 (Utah 1916).

Boyer v. Clark, 7 Utah 2d 395, 326 P.2d 107 (1958) (The uncontradicted evidence in the instant case disclosed that for a period exceeding 50 years, the public, even though not consisting of a great many persons, made a continuous and uninterrupted use of Middle Canyon Road in traveling by wagon and other vehicles and by horse from Upton to Grass Creek and other points as often as they found it convenient or necessary.).

Blonquist v. Blonquist, 30 Utah 2d 234, 516 P.2d 343 (1973) (The width was not limited to the beaten path but that which was reasonably safe and convenient for the use to which the road was put.).

Whitesides v. Green, 13 Utah 341, 44 P. 1032 (1896).

Deseret Livestock Co. v. Sharp, 259 P.2d 607 (Utah 1953) (Width of highway by user is that which is reasonable and necessary for the purposes established by public use.).

Burrows v. Guest, 5 Utah 91, 12 P. 847 (1887).

Redwood Gym v. Salt Lake City Commission, 624 P.2d 1138 (Utah 1981).

Ogden City v. Leo, 182 P. 530 (1919).

Schaer v. State, 657 P.2d l337 (Utah 1983) (Width is what is reasonable and necessary.).

Andrus v. State of Utah, 446 U.S. 500, 100 S.Ct. 1803, 64 L.Ed.2d 458, reh den 100 S. Ct. 3051, 65 L.Ed.2d 1137 (1980).

Hunsaker v. State, 29 Utah 2d 322, 509 P.2d 352 (1973) (Width is what is reasonably necessary for easement of travel.).

Leo M. Bertagnole, Inc. v. Pine Meadow Ranches, 639 P.2d 211 (Utah l981).

Sullivan et ux. v. Condas, 290 P. 954 (Utah 1930).

Utah Power and Light Co. v. Untied States, 243 U.S. 389 (1917).

Oregon Short Line Railroad Co. v. Murray City, 277 P.2d 798 (Utah 1954).

Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148 (1946).

Ute Indian Tribe v. State of Utah, 716 F.2d 1298 (10th Cir. 1983).

Bradshaw v. Beaver City, 27 Utah 2d 135 (1972).

Three-D Corp. v. Salt Lake City, 752 P.2d 1321 (Utah App. 1988).

Wykoff v. Barton, 646 P.2d 756 (Utah).

Freund v. Utah Power and Light Co., 793 P.2d 362 (Utah 1990).

C.S. Nielson, 767 P.2d 504 (Utah 1988).

Weggeland v. Ujifusa, 384 P.2d 591 (Utah 1963).

Nielson v. Sandberg, 141 P.2d 696 (Utah 1943).

Cook v. City of Price, 566 F.2d 699, 702 (10th Cir. 1977).

Plateau Min. v. Utah Div. of State Lands, 802 P.2d 720 (Utah 1990).

VanWagoner v. Whitmore, 199 P. 670, 673 (Utah 1921).

Thompson v. Nelson, 273 P.2d 720 (Utah 1954).

Thompson v. Condas, 493 P.2d 639 (Utah 1972).

Vance v. Utah, 744 F.2d 750, 752 (10th Cir. 1974).

Penrod v. Nu Creation Creme, Inc., 669 P.2d 873, 874-75 (Utah 1983).

Southern Utah Wilderness Alliance v. Board of State Lands, 181 UT Adv. Rep. 7

Bolton v. Murphy, 127 P. 336 (Utah 1912).

Schettler v. Lynch, 64 P. 955 (Utah 1901).

Jacobson v. Memmott, 354 P.2d 569 (Utah 1960).

Labrum v. Rickenbach, 711 P.2d 225 (Utah 1985).

Ski Park City West v. Major-Blakeney Corp., 517 P.2d 1325 (Utah 1974).

Coleman Co. v. Southwest Field Irrigation, 584 P.2d 883 (Utah 1978).

Important RS 2477 Cases From Other States

Ball v. Stephens, 158 P.2d 207, 209 (Cal. Ct. App. 1945) (“It was necessary . . . in order that a road should become a public highway, that it be established in accordance with the laws of the state in which it was located.”)

Lindsay Land & Livestock v. Churnos, 285 P. 646, 648 (Utah, l930) (“It has been held by numerous courts that the grant [under R.S. 2477] may be accepted by public use without formal action by public authorities, and that continued use of the road by the public for such length of time and under such circumstances as to clearly indicate an intention on the part of the public to accept the grant is sufficient.”)

Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901) (“By [R.S. 2477] the government consented that any of its lands not reserved for a public purpose might be taken and used for public roads. The statute was a standing offer of a free right of way over the public domain, and as soon as it was accepted in an appropriate manner by the agents of the public, or the public itself, a highway was established.”)

Important RS 2477 Federal Regulatory Citations

Early federal regulations provided as follows:

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. 56 I.D. 533 (May 28, 1938).

Those regulations were retained, virtually unchanged, for 110 years:

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).

In 1986, the Department recognized its duty to honor prior, valid existing rights:

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).

Miscellaneous RS 2477 Citations Regarding the Definitions of “Highway” and “Construction”

In Colorado, the term ‘highways’ includes footpaths. Simon v. Pettit, 651 P.2d 418, 419 (Colo.Ct.App. 1982), aff’d, 687 P.2d 1299 (Colo.1984). “Highways” under 43 U.S.C. 932 can also be roads “formed by the passage of wagons, etc., over the natural soil.” Central Pacific Railway Co. v. Alameda County, 284 U.S. 463, 467, 52 S.Ct. 225, 226, 76 L.Ed. 402 (1932). The trails and wagon roads over the lands which became part of the Colorado National Monument were sufficient to be “highways” under 43 U.S.C. 932 [R.S. 2477]. 634 F.Supp. at 1272.

“The term highway is the generic name for all kinds of public ways, whether they be carriage-ways, bridle-ways, footways, bridges, turnpike roads, railroads, canals, ferries, or navigable rivers.” Bouv. Law Dict., Rowle’s Third Rev. p. 1438, Tit. Highway; Elliott, Roads and Streets, p. 1; 25 Am.Jur, 340. Parsons v. Wright, 27 S.E.2d 534 (N.C. 1943)

A highway is commonly defined as a passage, road, or street which every citizen has a right to use. . . . A highway includes every public thoroughfare, “whether it be by carriage way, a horse way, a foot way, or a navigable river.” Summerhill v. Shannon, 361 S.W.2d 271 (Ark. 1962).

“Roads” and “highways” are generic terms, embracing all kinds of public ways, such as county and township roads, streets, alleys, township and plank roads, turnpike or gravel roads, tramways, ferries, canals, navigable rivers . . . . Strange v. Board of Com’rs of Grant County, 91 N.E. 42 (Ind. 1910).

Highways, as they were originally developed, were for the convenience and easy passage of persons on foot, on horseback, in vehicles drawn by horses or oxen, and also for the transportation of commodities by the same means. They were open to unrestricted use by all persons. City of Rochester v. Falk, 9 N.Y.S.2d 343 (1939)

The word “highway” as ordinarily used means a way over land open to the use of the general public without unreasonable distinction or discrimination, established in a model provided by the laws of the state where located. Lovelace v. Hightower, 50 N.M. 50, 168 P.2d 864 (1946).

Travel and transportation of goods by wheeled vehicles is not the only use to which a highway may be put. One walking or riding horseback, or transporting goods by packhorse, over a way which the public is constantly using, is a use of such a way as a highway. Hamp v. Pend Oreille County, 172 P. 869, 870 (Wash. 1918).

“User is the requisite element, and it may be by any who have occasion to travel over public lands, and if the use be by only one, still it suffices.” Wilkenson v. Dept. of Interior, 634 F.Supp. 1265, 1272 (D. Colo. 1986).

“Highways” under 43 U.S.C. 932 can also be roads “formed by the passage of wagons, etc., over the natural soil.” Central Pacific Railway Co. v. Alameda County, 284 U.S. 463, 467, 52 S.Ct. 225, 226, 76 L.Ed. 402 (1932). Id.

“Burr Trail” RS 2477 Case Holdings

Because of the importance of the “Burr Trail” cases in fleshing-out Utah R.S. 2477 law, citations from that case are provided below.

“From 1866 until its repeal by FLPMA in 1976, R.S. 2477 granted a ‘right of way for the construction of highways over public lands, not reserved for public uses….’ According to regulations issued by the Department of the Interior and, after 1946, the Bureau of Land Management, a right-of-way could be obtained without application to, or approval by, the federal government. See 43 C.F.R. s 2822.1-1 (1979). See also 43 C.F.R. s 244.55 (1939). Rather, ‘[t]he grant referred to in [R.S. 2477] [became] effective upon the construction or establishing of highways, in accordance with the State laws.’ 43 C.F.R. s 244.55 (1939).” 848 F.2d at 1078.

“The ‘scope’ of a right-of-way refers to the bundle of property rights possessed by the holder of the right-of-way. This bundle is defined by the physical boundaries of the right-of-way as well as the uses to which it has been put.” Id. at 1079, n. 9.

HOLDING: “Having considered the arguments of all parties, we conclude that the weight of federal regulations, state court precedent, and tacit congressional acquiescence compels the use of state law to define the scope of an R.S. 2477 right-of-way.” Id. at 1083.

HOLDING: “Because the grantor, the federal government, was never required to ratify a use on an R.S. 2477 right-of-way, each new use of the Burr Trail automatically vested as an incident of the easement. Thus, all uses before October 21, 1976, not terminated or surrendered, are part of an R.S. 2477 right-of-way. As there is no contention or evidence of termination or surrender in this case, the County’s right-of-way as of the repeal of R.S. 2477 on October 21, 1976, was that which was “reasonable and necessary” for the Burr Trail’s preexisting uses. . . . Thus, the scope of Garfield County’s right-of-way is that which is reasonable and necessary to ensure safe travel for the uses above-mentioned [driving livestock; oil, water, and mineral development; transportation by County residents between Bullfrog and other cities in Garfield County; and, at least since 1973, access for tourists to Bullfrog Marina on Lake Powell], including improving the road to two lanes so travelers could pass each other.” Id. at 1084.

HOLDING: “The right to make reasonable and necessary improvements within the boundaries of the right-of-way is part of the County’s valid existing rights in the Burr Trail.” Id. at 1086.

” . . . the County cannot be forced to give up its right-of-way, and indeed FLPMA s 509(a), 43 U.S.C. s 1769, expressly states that.” Id. at 1088.

“Although the district court ordered the County to apply to BLM for a permit to move the road [at one location to protect riparian habitat], we do not construe that order to mean that BLM may deny the permit, or impose conditions it might on ordinary right-of-way requests under FLPMA which would keep the County from improving the road.” Id.

“We do not have before us sufficient facts to determine whether a reasonable need existed in 1976 with respect to the Burr Trail to require some particular width beyond that needed for the presently planned improvements.” Id. at 1084.

HOLDING: ” . . . [A]s to improvement on rights-of-way affecting WSAs, while BLM may not deny improvements because they impair WSAs, it retains a duty to see that they do not unduly degrade. . . . Thus, when a proposed road improvement will impact a WSA the agency has the duty under FLPMA s 603(c) and the regulation to determine whether there are less degrading alternatives, and it has the responsibility to impose an alternative it deems less degrading upon the nonfederal actor. While this obligation is limited by BLM’s inability to deny the improvement altogether, it is sufficient, we hold, to invoke NEPA requirements.” Id. at 1091

“BLM’s authority is limited to what is relevant to its duty to prevent unnecessary degradation of the WSAs.” Id. at 1096.

Factors which apply to the Burr Trail which may not apply in other circumstances: “The trail has hosted a variety of uses: during the late 1800s and early 1900s to drive cattle, sheep and horses to market; around 1918 to facilitate oil exploration; and since the 1930s for various transportation, emergency, mineral, agricultural, economic development, and tourist needs. Garfield County (the County) has maintained the Burr Trail since the early 1940s. The combination of public uses and county maintenance has created a right-of-way in favor of Garfield County, pursuant to Congress’ grant of public land in R.S. 2477.” Id. at 1073.