Prepared by The Western Counties’ Resources Policy Institute

Background

In August of 1994 the Interior Department issued draft regulations dealing with RS 2477 rights-of- way. These regulations were so out of line with established case law, constitutional protections and even the operative Interior Department regulations that they set off a firestorm of opposition and protest. As a result, Congress took the unusual step in each of the next several years of writing into the annual appropriations bills for the Interior Department a prohibition on the implementation of any final RS 2477 regulations without the express authorization of Congress.

The Question At Issue

In the appropriations bill for fiscal 1997, the previous prohibition language was modified in an effort to make the annually-renewed prohibition permanent and avoid spending the time and effort required to impose it on a year-to-year basis. That language, which was Section 108 of that appropriations bill stated:

No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477 (43 U.S.C. 932) shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.

It was unclear whether this language was a permanent prohibition, since appropriations bill must be passed annually. A number of Senators and Members of Congress asked for a ruling by the General Accounting Office (GAO), the agency which, among other duties, sets the accounting standards and practices for the Federal Government. In an August, 1997 letter in response to this request, the GAO replied that in its opinion, this section was permanent law and that it barred any agency from implementing any rule or regulation on RS 2477 unless specifically approved by an Act of Congress.

The Significance of the Opinion

This permanent prohibition language is a substantial procedural victory for counties and all defenders public access rights. By effectively stopping the effort of the Interior Department to undermine RS 2477 rights through the rule making process, Congress has saved counties the expense and uncertainty of challenging final regulations in court. It has also assured that any regulations which would be developed will be thoroughly scrutinized in hearings where the Department would be called upon to defend in depth and in detail every assumption and presumption made. In light of its extreme and indefensible draft regulations, it is highly unlikely that any final regulations produced by this Interior Department could withstand such scrutiny, so they are probably dead. This language also has forced those attempting to undermine RS 2477 rights to try the legislative route and an administration bill has been drafted. However, it also has no chance of passage in its current form.