RS 2477 Right of Way

These Rights-Of-Way Are Vital To The Western U.S.

Most roads in the Western US were established by a congressional grant of 1866 (commonly referred to as “R.S. 2477”). By way of example, approximately 90% of all roads in western counties are R.S. 2477 rights-of-way.

R.S. 2477 rights-of-way are vested property rights entitled to all applicable constitutional protections. Up until just recently, those property rights have been consistently protected by uniform regulatory and judicial actions. Even when the grant was repealed in 1976, Congress took great pains to ensure that existing R.S. 2477 rights-of-way would be protected.

FOR MORE DETAILS ON R.S. 2477 LEGAL PRINCIPLES, SEE APPENDIX 1.

County Action Items

Federal land managers are violating R.S. 2477 property rights. Counties need to take action on R.S. 2477 in order to enhance their position. Some actions might include the following:

1. Set County Policy on R.S. 2477 and pass a Resolution to Establish That Policy;
2. Inventory Your Roads (Section II of this packet discusses this item in detail; there, individual action items are presented);
3. Perform Road Construction and Maintenance in a Way That Protects Your Rights (Section III of this packet discusses this item in detail; there, individual action items are presented).
4. Resist Improper Road Closures and Unequal Exchanges of Access Rights (Section IV of this packet discusses this item in detail; there, individual action items are presented).

No matter how this issue is ultimately resolved, completion of these action items will improve a County’s R.S. 2477 situation.

The fleshed-out list of action items is included in this workshop here. As you can see, this workshop suggests that Counties take 12 separate action items to improve their R.S. 2477 situation. Some of these items require formal commission action; others require a few minutes and a few computer keystrokes; still, other items require ongoing policy and procedural changes; and some items will arise only in certain situations, if ever.

RS 2477 Right of way Inventory

Determine Categories of Rights-Of-Way

Realizing that it costs money to assert and maintain rights-of-way, counties first must determine which categories of rights-of-way justify such costs. Categories of rights-of-way include the following:

1. Two-wheel drive roads
   • paved
   • gravel
   • other
2. Four-wheel drive roads
3. Horse paths
4. Foot trails
5. Other

As you go down the list, the likelihood of greater and more costly battles increases.

Legal authority does exist to suggest that each category listed above could be a valid type of R.S. 2477 “highway.” Courts have broadly defined “highway” to include paved, gravel, and dirt roads (for two- and four-wheel drive vehicles), horse trails, footpaths, and even some rivers and dogsled trails. Arguably, therefore, any type of “highway” used for transportation purposes is potentially a valid R.S. 2477 right-of-way.

In its proposed regulations, however, the Interior restrictively defined “highway” to mean only “a thoroughfare . . . for the passage of vehicles . . ..”

Thus, substantial controversy does exist regarding the definition of “highway.” This means that, as a preliminary matter, counties must determine which categories of rights-of-way justify the investment associated with assertion and maintenance.

Identify R.S. 2477 Rights-of-way

Know what roads you have. The easiest, most cost-effective way to do this might be to enlist the help of your road crew, sheriff’s office, and other groups that routinely get out and drive these roads. As they perform their other duties, ask them to make notes about the roads they travel — where the roads go, how long each road is, what condition the road is in, and how many people use the road per day. An organized approach will help you figure out how many roads you have and where they are.

These efforts should be coordinated with the information contained on maps to assure accurate location of the roads.

FOR A SAMPLE “ROAD INVENTORY FORM,” SEE APPENDIX 4.

Documentation

Be aware that most likely the county will someday have to prove the validity of each and every R.S. 2477. Accumulating the documentation necessary to do that is a time-consuming task. If counties do not perform the task now, they might run up against a short deadline under some possible scenario that would, in effect, invalidate their rights. Also, documentation will get lost over time and, if not accumulated today, may not be available when needed. One area where this could happen involves personal statements of knowledgeable people who may be dead by the time evidence is needed.

To make the case that a right-of-way is valid, a county will need to show (1) when the right-of-way was established, (2) that the right-of-way is used by the “public,” and (3) that the lands were not “reserved” at the time the right-of-way was established. To accomplish this, counties should gather documentation that shows when the road was created, how it has been maintained, and how the road has been used. Some ways to accomplish this task include:

1. talk with people who know the history of the road and get their written statements;
2. look through old county documents for mention of the roads;
3. locate the roads on maps, agreements, MOUs, and other documents; and
4. determine when, if ever, the lands were “reserved.”

FOR A SAMPLE STATEMENT FORM, SEE APPENDIX 5.

FOR A DISCUSSION OF MANY OF THE LEGAL PRINCIPLES DISCUSSED IN THIS SECTION, SEE APPENDIX 1.

County Action Items

To effectively inventory rights-of-way in preparation for future validity determinations, counties should do the following:

1. Determine which categories of rights-of-ways the county intends to assert and maintain;
2. Determine how many rights-of-way the county has and where they are located; and
3. Gather documentation to show that each right-of-way is valid.

Taking these steps, Counties will be ahead of the game when it later comes time to prove validity for any and all rights-of-way.

RS 2477 Maintenance and construction

Know Your Rights

This section is aided by a quick discussion of the legal rights that come with R.S. 2477 rights-of-way.

A 2477 right-of-way functions like an easement across someone else’s land. An easement involves two parties — the owner of the easement (here, most often, the counties) and the owner of the land (here, most often, the federal government). The owner of the easement is allowed legally to make certain uses of his easement, even though those uses impose some burdens on the landowner.

The easement rights are made clearer when this situation is put in more familiar terms. Let’s say that you reach your house by using a valid easement across your neighbor’s pasture. Your rights in that easement would allow you to use that road, maintain it, and improve it in certain circumstances. Now, let’s say that one day your neighbor decides that he does not like you having that easement, and he spends his energies keeping you from using it. Clearly, your neighbor’s new hostility does not affect your legal rights in the easement; it just makes using the easement more of a hassle. Confronted with your neighbor’s new hostility, you would likely exercise your rights to the easement in the following manner. Knowing that your neighbor will haul you into court in a heartbeat, you would first make sure that you never exceed your rights; where possible, you would work cooperatively with your neighbor and try to improve relationships; but, where cooperation is not possible, you would assert your rights, when necessary.

The above scenario fairly describes the current situation with R.S. 2477 rights-of-way. We can use the principles from that more familiar scenario to deal with this larger-scale dispute. Again, knowing that your neighbor will haul you into court in a heartbeat, counties first must make sure that they never exceed their rights; where possible, they should work cooperatively with the federal government and try to improve relationships; but, where cooperation is not possible, they should assert their rights.

For R.S. 2477, counties generally possess a right to make reasonable and necessary improvements to the right-of-way. What is “reasonable and necessary” is determined by safety and convenience. The limitation imposed on this right is that the improvements cannot “unnecessarily or unduly degrade” any surrounding federal Wilderness Study Areas if any. The Hodel Court established that unnecessary or undue degradation occurs whenever the best reasonable available technology is not incorporated into the improvements. In other words, the application of the appropriate AASHTO standard ensures that a project does not unnecessarily or unduly degrade.

Counties should know that the federal government now refuses to comply with most of these established principles. Thus, by proceeding down this line, even though a county’s actions might be legally permissible, counties could, nevertheless, be faced with harsh bureaucratic reactions.

Prioritize Projects

Create and update a list of proposed construction and maintenance projects for your rights-of-way. This list could be determined by some of the following factors:

1. the volume and type of traffic on the right-of-way;
2. physical characteristics and configuration of the right-of-way;
3. on-site inspections performed by county personnel or agents;
4. consultation with transportation experts who have the expertise to make an evaluation of the relative dangerousness of R.S. 2477 rights-of-way;
5. consideration of public comments, if any; and
6. the applicable AASHTO standard that will be applied to the right-of-way.
7. any other factor relating to safety.

Next, the projects on this list should be evaluated and prioritized. Prioritization might be based upon available funding and the applicable safety requirements that must be applied.

Notice

At times, notice to the servient estate holder is appropriate. This depends on the type and scale of activity being conducted. If no significant disturbance will be created by the activity, notice is probably not necessary because no new impact is being imposed on the servient estate holder.

On the other hand, activities creating significant new disturbances may suggest that notice should be given. Such notice might state the following:

1. That records regarding the existence of the right-of-way are available for review at county offices;
2. A description of the planned work and potential new disturbance, including the date work will commence if known; and
3. If appropriate, that the affected landowners may review the plans and visit the site.

The notice might also state that affected landowners may lodge an objection to the activity on any of three grounds.

1. That the right-of-way is not valid
2. That the activity exceeds the scope of the right-of-way; or
3. That the work does not utilize appropriate design or technology or otherwise respect the rights of the servient estate.

When objections may be lodged, notice should also clarify that the factual basis for each objection must be provided.

FOR A SAMPLE NOTICE FORM, SEE APPENDIX 6.

Responses to Objections

As mentioned above, the only three factually supported responses that may delay the proposed activity relate to information that was not previously known when the county proposed its activity. That new information will involve right-of-way validity, activities outside the scope of the right-of-way, and respect for the rights of the servient estate. Upon receiving such an objection, the county may respond in writing and, if appropriate, schedule a site visit or meeting.

Going To Work

Work should be conducted so as to respect the property rights of the surrounding lands. This means that safety standards should control the work that is done. And, even then, safety standards causing the least impact should be selected, where possible.

Counties should take care to avoid any unnecessary impacts on the surrounding lands. This means that, where appropriate, construction should be preceded by surveys for endangered species and archeological sites.

Also, a representative of the servient estate holder should be allowed to observe construction activities, so long as the representative’s presence does not unduly interfere with the work. If the observer objects to construction activity on site, the construction manager should consider avoiding the activity in question until the county commission has a chance to review the activity. However, the observer’s objection will not halt work that has been disclosed in prior notices or site reviews, except where unexpected conditions arise.

Action Items

The following action items will help counties maintain and improve R.S. 2477 rights-of-way as efficiently as possible.

1. Create and update a list of proposed construction and maintenance projects; evaluate and prioritize these projects;
2. Provide notice to servient estate holder, where appropriate; where appropriate, respond to objections;
3. Implement policies to ensure regard for surrounding lands.

Road closures and FLPMA Title V permits

Know Your Rights And Protect Them

Counties need to vigilantly protect their vested property rights. This means that counties should not trade R.S. 2477 rights-of-way for lesser rights, where possible. And, counties should require that interference with continued use of a right-of-way proceed according to constitutional procedures.

FLPMA Title V Permits

Federal agencies increasingly are offering counties the chance to “settle” disputed rights of way by way of FLPMA permits. There are several disadvantages to having a FLPMA right-of-way as opposed to an R.S. 2477 right-of-way. To obtain a FLPMA right-of-way a county must submit plans, contracts, agreements, and other relevant information relating to the use of the right-of-way to the BLM. After submitting this information, it is entirely within the discretion of the BLM to accept or deny the application for the right-of-way. Also, a FLPMA right-of-way is more limited than an R.S. 2477 right-of-way. A FLPMA right-of-way is temporary and revocable at the discretion of the federal government, whereas an R.S. 2477 right-of-way is potentially infinite in duration. Furthermore, a fee generally must be paid to obtain and retain a FLPMA right-of-way. Thus, FLPMA permits do not give counties the same rights that counties enjoy under R.S. 2477.

Counties must be aware that the government cannot force a county to exchange an R.S. 2477 right-of-way for a FLPMA permit.

Nothing in [FLPMA] shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted. However, with the consent of the holder thereof, the Secretary concerned may cancel such a right-of-way or right-of-use and in its stead issue a right-of-way pursuant to the provisions of this title.

43 U.S.C. 1769(a).

Where, however, a county deems it necessary to accept such a transfer, the FLPMA permit should be modified to represent as much as possible the rights possessed under R.S. 2477 and to specify that acceptance of the FLPMA permit does not constitute an abandonment of rights possessed pursuant to R.S. 2477.

FOR SUCH A MODIFIED FLPMA PERMIT, SEE APPENDIX 6.

Roads Can Only Be Closed According To Laws, Not Someone’s Whim

Permanent closure of R.S. 2477 rights-of-way can only occur in accordance with state law. Counties should not sit back and allow the servient estate holder to dictate the uses of the dominant estate.

To illustrate this principle, we will again use the example of an easement across your neighbor’s pasture. One day your neighbor puts up a gate across your easement. Again, your neighbor’s new hostility does not affect your legal rights in the easement. In such a situation, you would likely attempt to work cooperatively with your neighbor. If that failed, you might also go to court to have the gate removed.

In the R.S. 2477 context, counties should resist improper road closures. A management decision made by the servient estate holder must respect the rights of the dominant easement estate. In order to quickly move to have the gate removed, the counties must have completed the inventory process outlined previously.

At times, the servient estate owner might request that a road be closed temporarily. This, too, cannot be forced on the county, but should only occur according to law or according to the discretion of the county. If the servient estate owner requests closure of a right-of-way, the county should work with the servient estate owner to arrive at a mutually acceptable arrangement, where possible.

Any closure, permanent or temporary, requested by the servient estate owner may require compensation, as the specific facts dictate.

Action Items

To avoid having their rights diluted by the servient landowner, Counties should perform the following tasks:

1. Establish a policy that any exchange of R.S. 2477 rights requires formal commission action;
2. Whenever the servient estate holder impairs access across a valid R.S. 2477 right-of-way, the County will oppose that impairment or seek proper compensation

Discussion document regarding RS 2477 policies

GENERAL PRINCIPLES

1. R.S. 2477 rights-of-way are vested property rights entitled to all applicable constitutional protections.
2. The Judiciary is the proper branch of government to conclusively determine the validity of R.S. 2477 rights-of-way.
3. In most western states, R.S. 2477 rights-of-way were validly established by a governmental entity’s affirmative act or by public use over a sufficient period of time.
4. The “bundle of rights” for each R.S. 2477 right-of-way depends on the established uses of the right-of-way at the earlier of September 21, 1976, or whenever the underlying federal lands were reserved.
5. Counties may perform a validity analysis for rights-of-way within their jurisdiction.
6. Counties may maintain and improve R.S. 2477 rights-of-way.
7. The authority of the servient estate holder to influence the enjoyment of R.S. 2477 rights-of-way is limited to specified conditions.
8. Where the servient estate holder is not authorized to influence the enjoyment of a right-of-way, Counties may decide whether to seek the servient estate holder’s input on maintenance and improvement activities

Policies

RS 2477 right of way validity analysis

The goal of a right-of-way validity analysis is to fully incorporate valid R.S. 2477 rights-of-way into the county transportation system. This includes prioritization of transportation needs and identification, documentation, and classification of valid R.S. 2477 rights-of-way.

1. PRIORITIZATION
   • Counties will prioritize R.S. rights-of-way according to transportation needs and financial restrictions.
2. IDENTIFICATION
   • Counties will identify which R.S. 2477 rights-of-way meet established priorities.
3. DOCUMENTATION
   • Counties will actively compile documentation regarding the establishment, use, and maintenance of each road.
4. CLASSIFICATION
   • Counties will classify each right-of-way by type of use.
   • Counties will specify the desired standards for each road.

Maintenance and construction activities

The goal for maintenance and construction activities is to meet the transportation needs of the county. This includes cooperation with the servient estate holder, where appropriate, and sufficient planning so that the rights of both the dominant and servient estate holders will be honored.

1. SCOPING
   • Counties will create and update a list of proposed construction projects for documented R.S. 2477 roads.
   • Counties will evaluate and prioritize maintenance and construction activities.
2. NOTICE
   • Counties are not required to notify the servient estate holder for routine maintenance of R.S. 2477s and construction that will not create a new disturbance.
   • Where construction will create a new disturbance, counties will notify affected landowners of the proposed construction activities. Notice will state:
     • that records regarding the existence of the right-of-way are available at county offices;
     • a description of the planned work and potential new disturbance, including the date work will commence if known; and
     • if appropriate, that the affected landowners may review the plans and visit the site.
   • Notice will state that affected landowners may object that (1) the right-of-way is not valid, (2) the activity exceeds the scope of the right-of-way, or (3) the work does not utilize appropriate design or technology or otherwise respect the rights of the servient estate. Notice will specify that the factual basis for each objection must be provided.
3. RESPONSE
   • The only three responses that may delay the proposed activity are facts showing that (1) the right-of-way might not valid, (2) the activity might exceed the scope of the right-of-way, or (3) the work might not utilize appropriate design or technology or otherwise respect the rights of the servient estate. An objection not providing facts relevant to these grounds will not be considered, except in exceptional cases, which will be addressed on a case-by-case basis.
   • The county may respond to properly raised objections in writing. If appropriate, the county may schedule a site visit or meeting.
4. REGARD TO SURROUNDING LANDS
   • Construction will be conducted so as to meet applicable safety standards. Where possible, safety standards causing the least impacts will be selected.
   • Construction activities will be conducted so as to avoid any unnecessary impacts.
   • Where appropriate, construction will be preceded by surveys for endangered plant or animal species and archeological sites.
   • A representative of the servient landowner may be present to observe construction activities, so long as the representative’s presence does not unduly interfere with the work.
     • If the observer objects to construction activity on site, the construction manager will consider avoiding the activity in question until the county commission has a chance to review the activity.
     • Except where unexpected conditions arise, the observer’s objection will not halt work that has been disclosed in prior notices or site reviews.
5. 4-WHEEL DRIVE ROADS, HORSE TRAILS & FOOTPATHS (IF ANY)
   • These rights-of-way will be maintained in accordance with historical practice. No safety standards apply.
   • Generally, no new disturbance will occur. If an exception arises, notice will be provided, as specified above.
6. EMERGENCIES
   • When emergency situations arise on R.S. 2477 rights-of-way, the County should be notified.

RS 2477 right of way Eexchanges and closure

The goal regarding right-of-way exchanges and closures is to protect the vested property rights of the county.

1. EXCHANGES
   • R.S. 2477 rights-of-way may not be exchanged without formal action by the county commission.
2. ROAD CLOSURES
   • Permanent closure of R.S. 2477 rights-of-way can only occur in accordance with state law.
   • Temporary closure may occur upon the request of the servient estate owner, at the discretion of the county.
   • If the servient estate owner requests closure of a right-of-way, the county will work with the servient estate owner to arrive at a mutually acceptable arrangement, where possible
   • Any closure, permanent or temporary, requested by the servient estate owner may require compensation, as the specific facts dictate.

County action items checklist

1. Generally
   • Determine county policy regarding R.S. 2477 rights-of-way;
   • Prepare and adopt a county resolution implementing the county’s policy.
2. Road Inventory
   • Determine which categories of rights-of-ways the county intends to assert and maintain;
   • Determine how many rights-of-way the county has and where they are located;
   • Gather documentation to show that each right-of-way is valid.
3. Road Maintenance and Construction
   • Create and update a list of proposed construction and maintenance projects;
   • Evaluate and prioritize the projects on the list;
   • Provide notice to servient estate holder, where appropriate;
   • Where appropriate, respond to objections; and
   • Implement policies to ensure regard for surrounding lands
4. Road Closures and FLPMA Title V Permits
   • Establish a policy that any exchange of R.S. 2477 rights requires formal commission action; and
   • Establish a policy that whenever the servient estate holder impairs access across a valid R.S. 2477 right-of-way, the County will oppose that impairment or seek proper compensation.