“The Right-Of-Way for the construction of highways over public lands, not reserved for public use, is hereby granted.”
The Revised Statute 2477 Right Of Way is a human right granted by the U.S. Congress in 1865. It recognizes the fundamental right to travel across the Earth over unclaimed land. Part of the Mining Act of 1865, 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 way 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.
An RS2477 right-of-way must have been constructed on public lands that were not claimed under the various homestead and mining laws. Construction on an RS 2477 right-of-way must have began before the land was withdrawal from public entry.
RS 2477 was a grant that was authorized upon the passage of The Mining Act of 1865. It did not require authorization, documentation, or recognition of any kind.
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.”
The first right-of-way laws were enacted by the Continental Congress in 1777 regarding railroads and navigable rivers in response to King George III declaration of 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.
In response to state laws that prohibited land use rights to newly freed slaves, multiple mining and homestead laws were enacted to encouraging western expansion from poor Colonists and newly freed slaves. Among those laws was the Mining Act of 1865 from Senator William Morris Stewart from Nevada.
Senator Stewart was a mining legend, and a fearless man who served as governor of California before serving 29 years in the US Congress representing Nevada. He spent his entire adult life as a lawyer litigating mining disputes and developed the first mining laws during his governorship of California. He was a fundamental contributor to the Reconstruction Era as the author of the 15th Amendment to the US Constitution.
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 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).
1865 – The Mining Act of 1865 is written and introduced by Senator William M. Stewart from Nevada.
1870 – An amendment is proposed to grant special rights for the Sutro Tunnel in Nevada.
1870 – The founder of The Mining Act of 1865 opposes the proposed amendment and provides valuable insight into the legislative intent of RS 2477.
1976 – 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 1865.
1995 – 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.
1992-1997 – The US Congress include 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.
1997 – The Comptroller General issued an opinion that made section 108 of the Omnibus Consolidated Appropriations Act permanent law.
2003 – 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.
It is essential to become familiar with Revised Statute 2477.
This memo expands on the 1988 Policy Statement of Interior Secretary Donald Hodel on RS 2477 rights-of-way. It gives the State Directors (SD’s) of the BLM more specific examples and interpretations of that policy statement. Like the Hodel memo, it is of value both because it reflects the long-standing position of the BLM in dealing with these rights of way and also illustrates what a radical departure from that policy Interior attempted in issuing its draft regulations in 1994.
Determine If You Are Being Mislead Or Lied To! The attention given to RS 2477 rights-of-way has been accompanied by misinformation spread by anti-access environmental groups and federal bureaucrats. Sometimes this is because they do not understand the issue themselves. Often, however, it is a clear and deliberate effort to deceive. The following are the […]
Revised Statutes 2477 (R.S. 2477) states, in its entirety: “Sec. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” 8 of the Act of July 26, 1866, 14 Stat. 253, later codified at 43 U.S.C. 932. This […]
This is the text of the memorandum approved by Interior Secretary Donald Hodel in 1988. It is significant for two reasons. First, it summarizes the status of RS 2477 interactions with the public lands states and counties and reflects both past administrative actions and many court decisions. Second, as such, it illustrates how extreme the draft regulations issued by the Department of Interior just six years later really were and just how far they departed from previous policy and precedents.
Opponents of public access to the public lands–primarily environmental activists but also some federal bureaucrats who find RS 2477 rights-of-way “inconvenient”–are actively spreading myths and misinformation about RS 2477. Some of the most common are reproduced here along with the truth.
RS 2477 (which is an abbreviation of “Revised Statutes 2477”) was passed in 1866 and is a very short law, only one sentence long. It states, in its entirety, that “the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” Defining some of the terms and phrases […]
RS 2477 is a statute adopted in 1866 to facilitate the settlement of the West by encouraging the development of a system of roads and trails. The name “RS 2477” is an abbreviation of “Revised Statute 2477.” That name, in turn, comes from the placement of the original law in a reorganized version of the […]
I. UNDER R.S. 2477 CONGRESS OFFERED A SELF-EXECUTING GRANT OF RIGHTS-OF-WAY. 3 II. PERFECTED R.S. 2477 RIGHTS#2 VESTED AS PROPERTY RIGHTS. 5 III. STATE LAW PROVIDES THE BASIS FOR DETERMINATION OF THE EXISTENCE AND SCOPE OF R.S. 2477 RIGHTS-OF-WAY. 6 IV. ALL VALID EXISTING R.S. 2477 RIGHTS-OF-WAY WERE PERFECTED NO LATER THAN THE REPEAL OF […]
The Federal Land Policy Management Act allows the Secretary to issue a Recordable Disclaimer of Interest in Land that forfeits the federal governments interest in the right-of-way.
The Recordable Disclaimer of Interest in Land provides a process for the federal government to forfeit all rights to a RS 2477 right of way and other lands. States and Counties can use this process to solve RS 2477 disputes but is not the most efficient remedy.
The Following was published by the Bureau of Land Management in Utah and gives insight on how to implement a cooperative agreement between local governments and federal land managers as described in the Bureau of Land Management Memorandum Of Understanding with the state of Utah. The BLM acknowledges that other interested states and counties may […]
The Department of Interior entered into a Memorandum of Understanding with the state of Utah concerning assertations to RS 2477 rights-of-way. The Government Accounting Office later determined this memorandum was in violation of their previous decision B-277719 which prohibits any agency of the federal government from issuing any rule or regulation pertaining to the recognition, validity, or management of RS 2477 rights-of-way.
USA VS Garfield County, otherwise known as the Burr Trail, set the current precedent for RS 2477. This section covers the key documents of the case.
TABLE OF CONTENTS I. STATEMENT OF MATERIAL FACTS II. ARGUMENT A. INTRODUCTION B. NPS HAS NOT ESTABLISHED UNDISPUTED MATERIAL FACTS C. NPS HAS NOT SHOWN A LEGAL BASIS FOR ITS ASSERTED RIGHT TO INTERFERE WITH NORMAL MAINTENANCE ACTIVITIES WITHIN THE EXISTING DISTURBED AREA ON THE BOULDER-T0-BULLFROG ROAD. 1. NPS ignores explicit statutory limitations on its authority a. CRNP legislation b. NPS Organic act […]
Defendants Garfield County, Louise Liston, D. Maloy Dodds, Clare M. Ramsay, and Brian B. Bremner (hereinafter referred to collectively as Garfield County) hereby reply to the United States’ Opposition to Defendants’ Motion to Dismiss.(1) INTRODUCTION Plaintiff has stated general rules of law but ignored the specific rules that apply in this case, thus missing the […]
Originally written and published by Garfield County in Utah. Edited and republished by Kevin Allard with Arizona Backcountry Explorers. NOTE: The Boulder-To-Bullfrog Road (commonly also called the Burr Trail Road) in Garfield County in southern Utah has been the focus of RS 2477 litigation for more than a decade. During that litigation, many very important legal […]
July 30, 1996 CONTENTS I. INTRODUCTION II. STATEMENT OF FACTS: THE ALLEGATIONS OF THE COMPLAINT III. DISCUSSION A. Plaintiff Has Failed to Give the Requisite Notice under the Utah Governmental Immunity Act7 B. Plaintiff has Failed to Allege the Necessary Elements of a Trespass Claim7 C. Plaintiff’s Complaint Relies on an “Authority” which has no […]