Mining Act of 1866

The Mining Act of 1866 was written and introduced by Senator William M. Stewart from Nevada.

Senate Bill 16 – Proposed Amendment to the Mining Act of 1866

An amendment is proposed to grant special rights to the Sutro Tunnel in Nevada.

Senate Bill 16 – Statements of Fact from Senator Stewart

The author of The Mining Act of 1866 opposes the proposed amendment and provides valuable insights into the legislative intent of RS 2477.

The Department of Interior issues regulations on RS 2477 rights of way.

“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.”

43 C.F.R. 244.54 (1938)

President Richard Nixon issues Executive Order 11644 to manage off highway vehicle use of public lands.

Regulations on RS 2477 rights of way amended

“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).

Federal Land Policy Management Act (FLPMA) becomes law

The Federal Land Policy Management Act, otherwise known as the BLM Organic Act, established the Bureau of Land Management’s multiple-use mandate and repealed the Mining Act of 1866.

BLM establishes rules in response to executive order 11644

New rules were established by the BLM to define and govern “off-road vehicles” and place prohibitions on traveling over “natural terrain” in certain geographical areas.

Regulations on RS 2477 rights of way post-FLPMA

“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).

Interior Secretary Donald Hodel issued a memorandum on RS 2477

This memorandum directed federal land managers under the Department of the Interior on how to govern roads on federal lands. The memorandum is significant because it demonstrates how the federal government managed roads on federal lands prior to the Federal Land Management Policy Act.

BLM director Michael J. Penfold issues a memorandum expanding on Hodel’s memorandum.

Bureau of Land Management Director Michael J. Penfold expands on Interior Secretary Hodel’s 1988 memorandum by issuing agency guidance for the governance of RS 2477 rights-of-way.

Report to Congress on R.S. 2477 – The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands

The DOI was directed to prepare a report to Congress on a number of aspects of R.S. 2477. The directive to prepare the report requested that the following information be addressed:

• The history of rights-of-way claimed under R.S. 2477.
• The likely impacts of current and potential claims of such rights-of-way on the management of the federal lands.
• The likely impacts of current and potential claims of such rights-of-way on the access to federal lands, state lands, private lands, Indian and Native lands.
• The likely impacts of current and potential claims of such rights-of-way on multiple-use activities.
• The current status of such claims.
• Possible alternatives for assessing the validity of such claims.
• Alternatives to obtaining rights-of-way.
• Sound recommendations for assessing the validity of claims, consonant with the intent of Congress in enacting R.S. 2477 and FLPMA, that mandated policies of retention and efficient management of the public

The Department of the Interior proposes agency regulations regarding RS 2477

The Department of the Interior attempted to install regulations for the administrative treatment of RS 2477 rights-of-way. This action by the department started a firestorm of opposition across the country and never came to fruition.

• Comments by the Pacific Legal Foundation
• Comments by James Burling, Pacific Legal Foundation
• Comments by David Engdahl, Professor at Seattle University School of Law
• Comments by the State of Alaska
• Comments by the Utah Association of Counties

H. RES. 25 Requesting that the Secretary of the Interior withdraw proposed regulations concerning rights-of-way granted under section 2477 of the Revised Statutes

The 104th Congress introduced H. Res. 25, a resolution submitted by Mr. Orton, Mr. Hansen, and Mr. Young of Alaska, urging the Secretary of the Interior to withdraw proposed regulations related to rights-of-way granted under section 2477 of the Revised Statutes. The resolution highlights the historical significance of Section 2477 and emphasizes that valid rights-of-way were conveyed until the repeal by the Federal Land Policy and Management Act of 1976, which recognized and protected existing rights-of-way. The resolution expresses concern that the proposed regulations conflict with established law, legislative history, and departmental decisions, suggesting an overreach of authority. It concludes by requesting the Secretary of the Interior to withdraw the proposed regulations, redraft them to align with relevant laws and precedents, and reissue them for public review and comment.

Revised Statutes 2477 Rights-of-Way Settlement Act is introduced

The RS 2477 Settlement Act was introduced to settle disputes between states and the Federal Government concerning RS 2477 roads but failed to become law. The same legislation has been repeatedly introduced over the past 25 years.

The legislation has faced criticism from RS 2477 advocates due to its requirement to “claim” RS 2477 rights of way that were already granted to the people through the Mining Act.

Hearing before the subcommittee on National Parks, Forest, and Land on H.R. 2081

The subcommittee met pursuant to call at 10:00 a.m. in room 1324 Longworth House Office Building Hon. James Hansen chairman of the subcommittee presiding. During this meeting, the Bureau of Land Management provided testimony to the committees opposing the RS 2477 Settlement Act.

Committee on Energy and Natural Resources Report 104–261

The Senate Committee on Energy and Natural Resources, in its report (Senate Report 104–261), discusses S. 1425, the Revised Statutes 2477 Rights-of-Way Settlement Act. The report, dated May 9, 1996, recommends the bill’s passage with an amendment. The purpose of S. 1425 is to recognize the validity of rights-of-way granted under Section 2477 of the Revised Statutes. The amendment specifies that no final rule or regulation related to these rights-of-way shall take effect unless authorized by an Act of Congress enacted after the date of this Act. The Committee emphasizes the complexity and controversy surrounding R.S. 2477 rights-of-way claims, especially in Alaska and Utah. The bill, as amended, aims to allow the Department of the Interior to develop new regulations but prohibits their implementation until expressly approved by Congress. The report outlines the legislative history, committee recommendations, and the estimated cost and budgetary considerations. It notes that the bill would not affect direct spending or receipts and contains no intergovernmental or private sector mandates. The report also requests executive communications from relevant departments and states that no changes in existing law are made by the bill.

Omnibus Consolidated Appropriations Act of 1997

The US Congress included prohibitions in the annual Appropriations Act to prohibit federal agencies from establishing any rule or regulation pertaining to the validity, recognition or management of RS 2477 rights-of-way without the express authorization of the US Congress.

Comptroller General Decision B-277719

The Comptroller General issued an opinion that made section 108 of the Omnibus Consolidated Appropriations Act of 1997 permanent law. This demands that any rule or regulation pertaining to the validity, recognition, or management of RS 2477 rights-of-way be approved by an act of Congress.

Significance of Decision B-277719

The Western Counties Resources Policy Institute issued a statement declaring the GAO’s decision as a victory for RS 2477 advocates.

National Management Strategy for Motorized Off-Highway Vehicle Use on Public Lands

The Bureau of Land Management’s National Management Strategy addresses the surge in motorized off-highway vehicle (OHV) use on public lands. It aims to balance public recreation with conservation, offering guidance on roads, trails, and related activities. The strategy tackles issues like designations, regulations, resource management, education, law enforcement, and budgeting. Emphasizing increased funding and staffing, it prioritizes OHV management. Acknowledging off-road use as acceptable if aligned with resource objectives, it draws on public input to compile a “Motorized OHV Management Field Guide.” The goal is to implement solutions, protect resources, and efficiently address challenges tied to the rising popularity of motorized OHV use on public lands.

BLM implements the Travel Management Rule and removes RS 2477 protections

The Bureau of Land Management implements Travel Management Rules and repeals 43 U.S.C. 2801.4 installed during the rulemaking process for FLPMA that recognized RS 2477 rights-of-way.

H. R. 1639 – R.S. 2477 Rights-of-Way Act of 2003

Mr. UDALL of Colorado introduced R.S. 2477 Rights-of-Way Act of 2003 To provide a means of resolving claims regarding the continued existence of rights-of-way under former section 2477 of the Revised Statutes, which was repealed by the Federal Land Policy and Management Act of 1976.

CRS Report for Congress – Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers of Interest

The CRS report explores the challenges in defining and validating these rights. Additionally, it discusses Section 315 of FLPMA, allowing the Secretary of the Interior to issue disclaimers of interest, which has become a contentious issue due to recent amendments and a Memorandum of Understanding (MOU) between Utah and the Department of the Interior. The controversy involves concerns about Congress’s role in approving regulations related to R.S. 2477 and the lack of clearly defined criteria for validating claims. The report also mentions H.R. 1639, a proposed legislation in the 108th Congress aiming to establish a process for determining the validity of R.S. 2477 claims. Overall, the report highlights the complexities and disagreements surrounding the resolution of R.S. 2477 validity issues, emphasizing the need for clear standards and the involvement of Congress and the courts in the decision-making process.

General Accounting Office Opinion B-300912

The letter to Senator Bingaman addresses concerns about the Department of the Interior’s recognition of rights-of-way under Revised Statute 2477 (R.S. 2477) using a Federal Land Policy and Management Act (FLPMA) disclaimer process in a Memorandum of Understanding (Utah MOU). It evaluates the legality of the Department’s 2003 disclaimer amendments (2003 Disclaimer Rule) and the Utah MOU in relation to Section 108 of the Department of the Interior and Related Agencies Appropriations Act, 1997. The conclusion is that the 2003 Utah MOU, not the 2003 Disclaimer Rule, is prohibited by Section 108. The opinion asserts that, based on statutory construction and administrative law, FLPMA § 315 generally authorizes the Department to disclaim U.S. interests in R.S. 2477 rights-of-way. Legal views from the Department and reviews of responses to inquiries by Senators Bingaman and Lieberman inform the analysis. The opinion notes the absence of court rulings on the legal issues and emphasizes a balance supporting the Department’s authority under FLPMA § 315 amid controversy.