The right of way for the construction of highways over public lands, not reserved for public use, is hereby granted.
The Mining Act of 1866 included Section 8, which was later codified as Revised Statute 2477. This grant issued by the US Congress allowed western settlers to establish highways over public lands that were not reserved for use by the public. 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, foot paths, 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 Construction on an RS 2477 right-of-way must have begun before the land was withdrawn from public entry.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 can not 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, right to maintain, and the right to improve. These rights are reserved to the states and its 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.
The Blacks Law Dictionary defines a Right-Of-Way as the following:
“The right of passage or of way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.”
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 FLPMA provides new standards for rights-of-way on federal lands which are often applied in favor of RS 2477. 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 of 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)
Throughout the past 150 plus years, RS 2477 has evolved but kept the same basic principle.
The Mining Act of 1866 was written and introduced by Senator William M. Stewart from Nevada.
An amendment is proposed to grant special rights to the Sutro Tunnel in Nevada.
The author of The Mining Act of 1866 opposes the proposed amendment and provides valuable insight into the legislative intent of RS 2477.
“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.”56 I.D. 533 (May 28, 1938)
“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).
The Federal Land Policy Management Act, otherwise known as the BLM Organic Act, established the Bureau of Land Management multiple use mandate and repealed the Mining Act of 1866.
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.
“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).
This memorandum directed federal land managers under the department of the interior on how to govern roads on federal lands. This memorandum is significant because it demonstrates how the federal government managed roads on federal lands prior to the Federal Land Management Policy Act.
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.
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 fire storm of opposition across the country and never came to fruition.
The RS 2477 Settlement Act was introduced to settle disputes between the 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 for its requirement to “claim” RS 2477 rights of way that were already granted to the States through the Mining Act.
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.
The Comptroller General issued an opinion that made section 108 of the Omnibus Consolidated Appropriations Act permanent law.
The Bureau of Land Management amends regulations installed during the rulemaking process for FLPMA that recognized RS 2477 rights-of-way.
The Government Accounting Office issued a second opinion re-enforcing Decision B-277719 concerning a memorandum of understanding between the State of Utah and the Bureau of Land Management.
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.