November, 1994

INTRODUCTION

Access across federal lands which is free from unnecessary and burdensome bureaucratic regulation is vital to the economic and social well-being of the people of the western United States. This is especially the case in rural and undeveloped areas of the West which are dominated by land under federal jurisdiction. What was true for these areas in the late 1800’s is equally true today: access to our natural resources is paramount. What is different today, however, is that access serves a larger variety of purposes than it did in the late 1800’s. Not only is access necessary for rural residents to maintain their economic well-being through the utilization of natural resources such as rangeland, timber, minerals, and irrigation water, but access increasingly serves the recreational needs of rural and urban dwellers. While Congress declared in 1976 that no new access routes could be established under R.S. 2477, formerly 43 U.S.C. 932 (repealed 1976), existing rights-of-ways were to remain in effect.

The proposed regulations, however, would emasculate Congress’ intent to preserve existing rights-of-ways, violate long-standing principles of property law and federal-state comity, lack statutory authority, destroy state property rights, contradict existing legal precedent, and would injure the interests of both rural and urban users of the federal lands. Rather than being a responsible regulatory proposal designed to accommodate private, state, and federal interests, the proposed regulations do nothing more than resurrect the failed litigation strategies of the Sierra Club in Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988), and circumvent the litigation strategy that has thus far failed in Shultz v. Department of Army, 10 F.3d 649 (9th Cir. 1993).

Pacific Legal Foundation is a nonprofit public interest legal foundation with offices in Sacramento, California; Bellevue, Washington; and Anchorage, Alaska. It has over 20,000 contributors from throughout the United States who are very concerned that excessive and onerous government regulations are inimical to the best interests of the nation. Because of these concerns, Pacific Legal Foundation filed an amicus curiae brief in Shultz v. United States, a case where the Ninth Circuit Court of Appeals is determining the parameters of an R.S. 2477 right-of-way in Alaska. The proposed regulations expressly ignore the holding issued so far in Shultz(1) by assuming that the existing decision will be overturned on rehearing. Due to the Foundation’s interest in the Shultz case and in R.S. 2477 rights-of-ways, the following comments are respectfully filed.

THERE IS NO NEED FOR THESE REGULATIONS

The Department attempts to justify the proposed regulations on two bases: that some people mistakenly think that R.S. 2477 rights-of-ways are a carte blanche for destroying wilderness and that there is an inconsistency between the states on the nature of R.S. 2477 rights-of-ways. The first argument is silly and the second ignores the genius of the American federalism experience.

The preamble to the proposed regulations suggests:

There are some proponents of unlimited and unregulated access to Federal lands who view R.S. 2477 as a mechanism … to circumvent the protective requirements of current environmental and land use law and to authorize the present expansion of footpaths and animal trails into highways. Some environmental groups … [believe] it to have been resurrected … as a weapon to defeat the designation of existing and potential wilderness areas.

59 Fed. Reg. 39,216-17 (Aug. 1, 1994).

As a justification for these proposed regulations, this is utter nonsense. The courts have already determined that utilization of R.S. 2477 rights-of-ways may be subject to reasonable regulation. United States v. Vogler, 859 F.2d 638, 642 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989). Nowhere in R.S. 2477 or any case interpreting that statute is there any support whatsoever for the notion that animal paths can be turned into highways. While it is true that existing rights-of-ways may be utilized and maintained under R.S. 2477, expansion is limited to the scope of the existing right-of-way–although that limitation does not “freeze” the development of an existing road forever in place. Sierra Club v. Hodel, 848 F.2d at 1081-82 (allowing paving and widening of existing gravel road). Mere animal trails have never been construed to create an R.S. 2477 right-of-way. If Congress wants more regulation it can pass an authorizing statute. But the Department of Interior, without extant authority, cannot impose its own regulations which would destroy existing rights-of-ways simply because some hypothetical irrational beliefs of unspecified “proponents.”

Nor is the fear that wilderness areas will be lost justified. If there is an existing R.S. 2477 right-of-way through an area, that fact must be taken into account when Congress determines the value of an area for inclusion in the national wilderness system. The fear that the existence of a preexisting right-of-way may influence a decision on whether or not to designate a wilderness area is not, however, any justification at all for an attempt to abrogate these existing rights-of-ways.

The preamble also suggests that “[i]n the absence of uniform Federal guidance, court decisions–sometimes applying widely varying State laws–have also failed to provide consistent or complete interpretations.” 59 Fed. Reg. at 39,217. So what? A great virtue of our federal system of government is that every state, within the confines of federal supremacy, is the master of its own fate. Many federal environmental laws expressly rely upon their implementation through a cooperative system of state plans, state regulation, and state enforcement. See, e.g., Clean Air Act, 42 U.S.C. 7401, Clean Water Act, 33 U.S.C. 1251. The United States Supreme Court has on many occasions applauded our federalist system that allows states to serve as a laboratory with unique programs, rules, and regulations. Federal Energy Regulatory Commission v. Mississippi, 456 U.S. 742, 788 n.20 (1982); see New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). And in Sierra Club v. Hodel, 848 F.2d at 1082, the Tenth Circuit plainly noted that “the need for uniformity … provides only minimal support for the choice of federal law.” Furthermore, referring to the date of R.S. 2477’s original enactment, the court noted that plaintiffs had pointed to “no policies from 1866 that would demand uniformity.” The court continued to note that there were, instead, considerations in favor of relying upon state law for determining the scope of an R.S. 2477 right-of-way:

The replacement of existing [state] standards with an “actual construction” federal definition would disturb the expectations of all parties to these property relationships.

Id. at 1083.

Finally, the preamble to the proposed regulation states that federal land managers will have an easier job in land use planning if R.S. 2477 rights-of-ways are identified before the planning process is completed. 59 Fed. Reg. at 39,217. That might be true, but these regulations do much more than facilitate the identification of rights-of-ways. These regulations provide an unlawful mechanism for abrogating existing rights-of-ways. While it may be important for planners to identify the location of R.S. 2477, rights-of-ways it has not been demonstrated that the benefit to planners outweighs the injury to state governments and the public that abrogation of R.S. 2477 rights-of-ways would entail. In short, inadequate justification has been provided for the promulgation of these regulations.

COURTS HAVE ADOPTED LIBERAL STATE LAW MEANINGS FOR THE WORD “CONSTRUCTION,” INCLUDING A MERE “USE” STANDARD IN SUPPORT OF THE EXISTENCE OF R.S. 2477 RIGHTS-OF-WAYS

The preamble suggests that a federal “actual construction” standard must require that “intentional physical acts be performed with the achieved purpose of preparing a durable, observable, physical modification … be suitable for highway traffic.” 59 Fed. Reg. at 39,220. It continues: “Construction of a highway cannot be accomplished solely by … continual passage … clearing of vegetation; or removal of large rocks.” Id.

Even assuming that a new standard could obviate rights-of-ways already created under the old state law standards, this requirement is not supported in the statute. The language of R.S. 2477 is quite simple: “The right-of-way for the construction of highways over public lands not reserved for public uses, is hereby granted.” As noted above, traditionally it has been thought that so long as a highway had been created under the laws of a state or territory, a valid R.S. 2477 route had been established. 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.”

Similarly, in Smith v. Mitchell, 58 P. 667, 668 (Wash. 1899), the Supreme Court of Washington plainly stated that the establishment of an R.S. 2477 right-of-way should be liberally construed:

R.S. 2477 … does not make any distinction as to the methods recognized by law for the establishment of a highway. It is an unequivocal grant of right of way for highways over public lands, without any limitation as to the method for their establishment, and hence a highway may be established across or upon public lands in any of the ways recognized by the law of the state in which such lands are located …. Any other conclusion would occasion a serious public inconvenience.

Id. (quoted with approval in United States v. 9,947.71 Acres of Land, More or Less, in the County of Clark, Nevada, 220 F. Supp. 328, 335 (D. Nev. 1963)).

In Ball the court also noted that in California “[d]edication could also be effected without action by the state or county.” Ball, 68 Cal. App. 2d at 846. What was needed is evidence of “sufficient public use.” Id. (emphasis added).

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.

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). Of course, if the question of what it takes to establish a public highway, and concomitantly an R.S. 2477 highway, is dependent upon the law of the states, then the criteria for what is necessary to establish such a right-of-way would be different in every state.

After Gates was decided, the Tenth Circuit Court of Appeals explained further that in the case of R.S. 2477 routes, the Bureau of Land Management (BLM) had affirmatively assented to state law determinations. Sierra Club v. Hodel, 848 F.2d at 1080. The reasoning of this decision is very persuasive. 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 a 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. Thus, because the federal government did acquiesce to state law, R.S. 2477 rights-of-way created in accordance with state law definitions passed irrevocably to the states.

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.

NEW FEDERAL REQUIREMENTS CANNOT OBVIATE EXISTING RIGHTS GRANTED UNDER R.S. 2477

The gist of these rules is to impose a federal “actual construction” standard on the continued existence of preexisting R.S. 2477 rights-of-ways. According to the preamble, the proposed rule “would continue to recognize the role of State law, to the extent that State law is consistent with the baseline requirements of Federal law.” 59 Fed. Reg. at 39,218. These minimum standards incorporate an actual construction standard which the preamble recognizes to be in conflict with existing state standards. To avoid this conflict the regulations would ignore state law:

Therefore, provisions of State law that authorize the “establishing” of highways without … actual construction … conflict with Federal law and may not be utilized.

59 Fed. Reg. at 39,218. The preamble further suggests:

The Department of the Interior will not give binding effect to State court determinations on the validity of rights-of-way pursuant to R.S. 2477 unless the United States was a party to those cases.

59 Fed. Reg. at 39,220.

There is a fundamental error with these statements. As will be explained next, the United States has already acquiesced to the reliance upon state law and procedures for the establishment of R.S. 2477 rights-of-ways. It is too late to put the genie back in the bottle.

The rights-of-ways established in accordance with state standards–including the standards of those states that did not require actual construction–already exist and have been recognized as such by the federal courts. In Sierra Club v. Hodel, 848 F.2d at 1080, the court explained that while Congress did not expressly adopt state law definitions, the many years of acquiescence by the federal agencies to state law served to create rights-of-ways in conformance with the laws of the various states:

Congress explicitly adopted state or local law as the rule of decision [for other sections of the statute] … [and] simply did not decide which sovereign’s law should apply.

In the face of such congressional silence, the interpretation given by the federal agency with dominion over the statute’s subject matter carries great weight ….

The federal regulations heavily support a state law definition. At least since 1938, the Secretary of the Interior has interpreted R.S. 2477 as effecting the grant of a right-of-way … “in accordance with State laws ….”

848 F.2d at 1080. In other words, for the entire period of time during which R.S. 2477 was in effect, there were no baseline federal “actual construction” or other such standards. The rights that were established between 1866 and 1976 were established in accordance with state law.

Since those rights have already been created, the title to the rights-of-ways has vested with the states and the United States no longer has an interest in those rights-of-ways.

[T]he title of the … right-of-way passed from the United States and vested in the [claimants to the R.S. 2477 right-of-way] … and ceased to be a portion of the public domain, without any further action by either or by any public authority.

United States v. 9,947.71 Acres of Land, 220 F. Supp. at 335. In other words, the interests of the United States in the right-of-way ceased. Thus the imposition of minimal federal standards in 1994 cannot have an effect on the existence of preexisting rights-of-ways.

R.S. 2477 HIGHWAYS DO NOT REQUIRE ACTUAL PAVED ROADS APPROPRIATE ONLY FOR WAGON TRAFFIC BECAUSE THE CONTEMPORANEOUS MEANING OF THE WORD “HIGHWAY” WAS VERY BROAD WHEN R.S. 2477 WAS ENACTED

As justification the preamble continues: “When R.S. 2477 was enacted, a highway was understood to mean an open public road that served public travel or commerce needs or connected places between which people or goods traveled. Congress presumably authorized the construction of highways to make it possible for vehicles, including wagons to travel them.” 59 Fed. Reg. at 39,220 explaining proposed 36 C.F.R. 39.3(f). This statement is completely unsupported for the simple reason that it is wrong. The suggestion flies in the face of the commonsense meaning of the word highway that was in existence in 1866.

When R.S. 2477 was passed, the word highway was very liberally construed in the legal dictionaries of the time. This was recently explained in Comments of the Honorable William H. Orton and the Honorable Don Young on the CRS Report on RS 2477 Rights of Way (April 2, 1993) (attached as Appendix A):

For example, the 1867 edition of Burrill’s Law Dictionary defined a highway as:

A public way[(2)] or road; a way or passage open to all; a way over which the public at large have a right of passage.

The 1879 edition of Abbott’s Dictionary of Terms and Phrases Used in American or English Jurisprudence explains the term this way:

HIGHWAY. A road free to the public; a passage open to all persons.

There is a difference in the shade of meaning conveyed by two uses of the word. Sometimes it signifies right of free passage, in the abstract, not importing anything about or construction of the way. Thus a river is called a highway; and it has not been unusual for Congress, in granting a privilege of building a bridge to declare that it shall be a public highway. Again, it has reference to some system of law authorizing the taking of land and preparing and devoting it to the use of travelers.

Brande’s 1867 Dictionary contains this entry:

Highway. In English Law, a highway … includes a horse road, or a mere footpath, as well as a carriage road. Any way common to all people, without distinction, is a highway.

Id. at 4-5 (footnotes omitted, emphasis added).

The list goes on and on. See Appendix A at 3-9. In sum, a multitude of contemporaneous legal dictionaries and legal treatises give the broadest possible interpretations of the word highway.

These interpretations happen to be entirely consistent with the court’s decision in Shultz v. Department of Army, 10 F.3d 649, a decision that the department has chosen to ignore. 59 Fed. Reg. at 39,218. While the Department attempts to characterize the Shultz decision as adopting “unprecedented, relaxed standards for the establishment of R.S. 2477 rights-of-way,” the decision correctly embraces the established legal meaning of the term highway as used in R.S. 2477, a meaning which should be adopted in the regulations.

R.S. 2477 RIGHTS-OF-WAY ARE CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN WITHOUT THE PAYMENT OF JUST COMPENSATION

Regulations that would eliminate the title of rights-of-ways that were created in accordance with federal acquiescence to state law standards will have severe takings implications.(3) Such takings implications require a meaningful takings implications analysis in accordance with Executive Order 12630, reprinted in 5 U.S.C. 601, note. The suggestion that “this proposed rule does not represent a governmental action capable of interference with constitutionally protected property rights,” 59 Fed. Reg. at 39,224, is totally erroneous. The effect of the proposed regulation will be to “redefine” the property right of the sovereign states in public rights-of-ways previously granted to the states through the exercise of R.S. 2477. An attempt to redefine a property right, such that a formerly valid property right is defined out of existence, has obvious takings implications. The Court in Lucas v. South Carolina Coastal Council, 505 U.S. _, 120 L. Ed. 2d 798, 822 (1992), made it clear that courts must look to “existing rules or understandings” of property in order to define property rights, not a later redefinition of a property right. See also Hughes v. State of Washington, 389 U.S. 290, 297 (1967) (Stewart, J., concurring) (redefining property right in accreted land could give rise to a taking).

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 traditional understandings of the meaning of a property right must be given great weight.(4) 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. Wilbur ex rel. v. Krushnic, 280 U.S. 306, 316-17 (1930) (“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.”). 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. 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..

West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 532 (1848) (emphasis added). Put more directly, “[t]he owner of personal property cannot be devested of his ownership without his consent, except by process of law.” Dows v. National Exchange Bank of Milwaukee, 91 U.S. 618, 637 (1875). These R.S. 2477 regulations, by destroying over a century of settled expectations and reliance upon state law standards in the creation of R.S 2477 rights-of-ways, will take very significant property interests of the states, which will require the payment of just compensation.

R.S. 2477 RIGHTS-OF-WAYS CANNOT BE ABANDONED NOR CAN THEY BE ELIMINATED BY EXPIRATION OF THE 12-YEAR STATUTE OF LIMITATIONS UNDER THE QUIET TITLE ACT

The preamble calls for comments on whether or not an existing right-of-way can be abandoned. 59 Fed. Reg. at 39,220. Presumably this could refer to two types of situations. The first is where use of a right-of-way has been made difficult or impossible because of federal actions subsequent to the creation of the right-of-way, such as the creation of a wilderness area. The second circumstance might result from a period of voluntary nonuse. The preamble also suggests that “these regulations … shall serve as notice for purposes of the Quiet Title Act.” 59 Fed. Reg. at 39,222. These issues of abandonment and quiet title are interrelated and will be addressed together.

Because the nature and scope of the property rights in R.S. 2477 rights-of-ways 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 is that adverse possession does not apply against state sovereigns. See, e.g., In re Waters of Hallett Creek Stream System, 44 Cal. 3d 448, 459 (1988). In other words, a state government cannot lose its property through adverse possession.

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. Title 28, United States Code 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 acted in detrimental reliance upon a perceived abandonment, with such reliance based upon “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 access across an R.S. 2477 right-of-way through the creation of wilderness or wilderness study areas because the establishment of a wilderness area is not a substantial improvement or investment.

With respect to private individuals who may wish to bring a claim against the federal government in order to quiet title to an R.S. 2477 right-of-way, such an individual (assuming he or she had 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 an R.S. 2477 right-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 a right-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.

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 “subject to existing private rights,” id.(5) (emphasis added), there shall be no permanent roads. 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 valid existing rights–including R.S. 2477 rights-of-ways. 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, Pub. Law No. 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-ways. The suggestion, therefore, that the creation of a Wilderness Area “should automatically disqualify a claim from consideration,” 59 Fed. Reg. at 39,223, is wrong.

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 law of abandonment should not work a forfeiture of rights-of-ways which belong to state sovereign governments.

R.S. 2477 RIGHTS-OF-WAYS WERE NOT FROZEN IN 1976

The preamble requests comments on whether improvements can “expand the scope of the right-of-way as it existed on the latest available date.” 59 Fed. Reg. at 39,220. The preamble also requests comments on whether the scope, as outlined in proposed 36 C.F.R. 36.3(o), should be limited to the actual use in place in 1976. 59 Fed. Reg. at 392,21. It would appear that the department is now advancing as its own the position of the Sierra Club that was firmly rejected in Sierra Club v. Hodel–which made it clear that the courts would look to state law to determine the scope of a right-of-way, 848 F.2d at 1082. In that case, the Tenth Circuit expressly rejected the notion that the rights-of-ways must be frozen in place, with no improvements or alterations allowed after 1976. Id. at 1081-83. There, the court allowed a right-of-way to be widened and paved. Id. This is plainly contrary to the limitations suggested in Section 36.3(o).

A TWO YEAR FILING DEADLINE IS INSUPPORTABLE

The rights-of-ways belong to the states. Congress has not authorized any mechanism for taking such state property through any administrative program. They belong to the states and will continue to belong to the states unless a state decides to give a right-of-way back to the federal government or unless the federal government condemns and pays for it.

In addition, there may be hundreds of thousands of miles of R.S. 2477 rights-of-ways in the western United States. Even if the federal government could somehow impose filing deadlines on the continued existence of property belonging to the sovereign states, two years is far too short a time. The states would first have to budget and establish administrative teams to investigate and catalog all R.S. 2477 rights-of-ways and then file applications in a form acceptable to the bureaucracy of the United States Department of Interior. A two-year limitation is totally unacceptable.

THE USE OF RIGHTS-OF-WAYS SHOULD NOT BE HALTED DURING THE APPLICATION PROCESS OR DURING ANY APPEALS PROCESS

Proposed Section 39.9 would authorize “any interested party” including any “public land user” to file an appeal objecting to the recognition of a right-of-way. This is too liberal in that it grants standing to individuals with no discernable real interest in a right-of-way to file an appeal. Standing should be limited to those able to demonstrate a potential injury from the use of an R.S. 2477 right-of-way that is not presently in use. Furthermore, there should be no stay of use of the right-of-way during the pendency of an appeal.

CONCLUSION

The proposed regulations are nothing but a federal land grab of property that was lawfully divested to the sovereign states between 1866 and 1976. After years of acquiescence, the Department of Interior cannot now rewrite the rules of the game and take away these rights-of-ways by redefining their nature, scope, and extent. If the federal government wants these rights-of-ways back it should do so the old-fashioned way: it should pay for them. It should not steal them through regulation.

1. In Shultz, 10 F.3d 649, the court held that the plaintiff had established a public right-of-way (R.S. 2477) over a military base by showing that a trail across the area where the base lies was used before the government established the base in 1937. The court found that the 12-year statute of limitations for quiet title action against the United States did not preclude plaintiff’s action.
2. Today a “way” is distinguished under existing departmental policies from a road by its lack of routine maintenance for the purpose of facilitating highway vehicles.
3. It is well established that, if the federal government takes property belonging to a state sovereign, compensation must be paid. United States v. 50 Acres of Land, 469 U.S. 24, 31 (1984) (“the reference to `private property’ in the Takings Clause … [encompasses] the property of state and local governments when it is condemned by the United States … the same principles of just compensation presumptively apply”).
4. Expectations or “mutually reinforcing understandings” are critical in defining the nature of a property right. See, e.g., Nixon v. United States, 978 F.2d 1269, 1276 (D.C. Cir. 1992) (holding that presidential papers were private property because they were treated as such since George Washington was president.) See also Kaiser Aetna v. United States, 444 U.S. 164, 179 (1979) (property right in tideland based on traditional understanding).
5. See Footnote 3, supra.