Revised Statute 2477 was a grant from the U.S. Congress to all U.S. citizens to build highways over public land. It was part of the Mining Act of 1866 and remained in place until its repeal in 1976. It is directly responsible for the establishment of interstate, state, county, and city road systems across the western United States. It is also responsible for the construction of forest roads, mining roads, canals, ditches, bridges, and other fundamental access paths that exist today.
The Revised Statute 2477 Right of Way is a human right granted by the U.S. Congress in 1866. It recognizes the fundamental right to travel across the Earth over unclaimed land. Part of the Mining Act of 1866, it allowed the construction of roads, trails, bridges, canals, railroads, and other recognizable paths known as “highways.”
Construction of an RS 2477 highway was established by repeatedly using the same path over the earth until a visible route was created. The courts have ruled that animal trails, footpaths, bridleways, and other recognizable paths fall under the term “highway” and are RS 2477 rights-of-way.
The RS 2477 right-of-way must have been constructed on public lands that were not reserved for the public, or claimed under the various homestead and mining laws. Construction on an RS 2477 right-of-way must have begun before the land was withdrawn from public entry.
RS 2477 was a grant that was authorized upon the passage of the Mining Act of 1866. It did not require authorization, documentation, or recognition of any kind to build a road on public lands.
Since the beginning of time, rights-of-way have been considered public spaces and are fundamental to the public forum. They are among several places where individuals cannot be trespassed without committing a crime and have an unalienable right to free speech and communication. Rights-of-way facilitate parading, protesting, dissemination of information, exploration, commerce, news gathering, and the multiple-use doctrine.
RS 2477 rights-of-way contain a bundle of rights, including the right to use, the right to maintain, and the right to improve. These rights are reserved for the states and their citizens. The scope of these rights covers a width specified by state law and includes all things that facilitate the use of the right-of-way. This may include roadside pull-offs, bridges, drainage ditches, culverts, and the like.
FLPMA repealed the original RS 2477 statute. However, three separate sections of FLPMA declare that Revised Statute 2477 rights-of-way shall not be terminated, and all actions by the secretary shall be subject to these rights.
The abandonment of RS 2477 right-of-way standards is incentivized by federal transportation funding that demands compliance with FLPMA and NEPA standards and is contradictory to RS 2477. The FLPMA provides new standards for rights-of-way on federal lands, which are often applied in favor of RS 2477 to acquire federal funding. These standards lack the protections of RS 2477 and are permitted by federal agencies rather than granted by the U.S. Congress.
The Federal Land Policy Management Act of 1976 (FLPMA) states:
“Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this act.”
FLPMA 701(a), 43 U.S.C. 1701 note (a).
“All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”
FLPMA 701(h), 43 U.S.C. 1701 note (h).
“Nothing in this title shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted.”
FLPMA 509(a), 43 U.S.C. 1769(a).
During the rule-making process, multiple debates took place regarding the repeal of Revised Statute 2477. These debates, published in the Federal Register, are fundamental to understanding the legislature’s intention for these three sections of FLPMA.
“It was not the intent of the proposed rulemaking, nor is it the intent of this final rulemaking, to diminish or reduce the rights conferred by a right-of-way granted prior to October 21, 1976. . . . In addition, if questions should arise regarding the rights of a right-of-way holder under a grant or statute, the earlier editions of the Code of Federal Regulations on rights-of-way will remain available to assist in interpretation of the rights conferred by the grant or earlier statute. . . . In carrying out the Department’s management responsibilities, the authorized officer will be careful to avoid any action that will diminish or reduce the rights conferred under a right-of-way grant issued prior to October 21, 1976.”51 Fed.Reg. 6542 (February 25, 1976)
The first right-of-way laws were enacted by the Continental Congress in 1777 regarding railroads and navigable rivers shortly after King George III’s declaration of the Proclamation Line. In 1785, the Land Ordinance was enacted and established the Public Land Survey System, and a mechanism to dispose of newly acquired western lands. It wasn’t until the Reconstruction Era that RS 2477 became law.
The Mining Act of 1866 remedied multiple problems during the reconstruction era. Up until that time, wagon roads, mail roads, and railroads were granted by individual acts of Congress. With the vast western expansion, the federal government couldn’t keep up with the demand for access routes administratively or financially. It solved issues relating to land claims under the Land Ordnance of 1785, which left land owners disputing rights-of-way to access abutting property lines. It settled multiple disputes with western miners over haulage tunnels, accessing mining claims, constructing canals, and even faced an amendment to benefit the Comstock.
The Mining Act was among multiple mining and homestead laws that were enacted to encourage western expansion by poor Colonists, immigrants, and newly freed slaves. Many influential individuals, such as Charles Sumner, who ran the Freedmen’s Bureau, campaigned on the right-to-way as a mechanism to counter the actions of states who prohibited newly freed slaves from accessing their homesteads. “The liberty that has been granted ‘cannot be’ if the Black Code exists,” Sumner said about the homestead and mining laws. “A piece of land that has been conveyed is useless without that right-of-way which is stopped up by the Black Code. The reason for the Black Code is slavery; and with the cessation of the reason, the whole Black Code itself must cease also.”
The Mining Act of 1866 was written by Senator William Morris Stewart of Nevada. Senator Stewart was a mining legend and a fearless man who served as acting Attorney General of California before serving 29 years in the US Congress representing Nevada. He spent a majority of his adult life as a lawyer litigating mining disputes and developed the first mining laws during his position as acting Attorney General of California. He was a fundamental contributor to the Reconstruction Era as the author of the 15th Amendment to the US Constitution which gave newly freed slaves the right to vote.