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 in this law clarifies the intent of Congress in passing this law which was designed to facilitate the settlement of the western frontier. Clearly, it is only possible to understand what Congress intended in passing the law in 1866 if the terms are defined as Congress understood them over a century ago.
“Right-of-way” means a bundle of rights widely recognized in common law and explicitly in many statutes and court decisions that govern access across a piece of property. In the case of 2477 rights-of-way, the rights are usually held by the county government and apply to travel to and across federally-managed lands. The bundle of rights includes the ability to travel freely, maintain and improve the road under certain conditions, and otherwise manage its use.
The courts have interpreted “construction” to include a broad array of activities, from constructing a road or trail merely by the periodic passage of foot or animal traffic to more specific and formal road-building activities. These interpretations make it clear that the definition was not limited only to actually altering the land by a mechanical device. Indeed, some of the “interstate highways” of the 19th century, such as the Oregon Trail, the Santa Fe Trail, the Mormon Trail, and others were created only by the continuous passage of wagons and animals and not by mechanical means. It is obvious that Congress clearly intended to grant a right-of-way for such roads to local government as an aid to opening the West for settlement.
Similarly, the definition of the term “highway” is broad-ranging. Several legal dictionaries and court decisions dating from the 19th century make it clear that the term “highway” not only included frequently-traveled, periodically-maintained roads but also included numerous other kinds of public ways, among them carriage-ways, bridle-ways, footways, bridges, turnpike roads, and even railroads, canals, ferries, or navigable rivers. The essential element of the definition is that whatever the transportation mode, the public has the right to come and go at will.
The term “public lands” used in the law was defined very similarly to what we understand it to mean today. It meant, simply, land owned by the federal government. A 2477 right-of-way could be established only over land owned by the federal government which was not otherwise restricted or “reserved”.
The term “reserved” is commonly understood to mean setting aside a portion of public land as a national park, national forest, military reservation or for a similar facility. If the right-of-way grant predated the reservation of the land for one of these uses, it still remained a valid property right.
“Is hereby granted”
The term “is hereby granted” is particularly crucial to understanding this law and the 2477 rights-of-way controversy. By including this phrase, Congress made 2477 a self-executing law. When the minimal conditions were met, the right-of-way grant occurred. That grant is a legitimate property right, held by the state or local government for the public.
Because RS 2477 was a self-executing law, it was not necessary to apply for the right-of-way. Its transfer to the local governmental unit required no action by any land management agency. Congress did not even require that any paperwork be sent to the federal management agency specifying what right-of-way grants were accepted by local governments. The grant by Congress was nonetheless valid.
What is constructing a highway?
The specific requirements for “constructing a highway” and the specific details of the grant, such as the width of the right-of-way, were defined by the laws of the state in which the right-of-way was located.
This method of granting rights of way across federal land was in effect from the passage of RS 2477 in 1866 until the passage in l976 of the Federal Land Policy Management Act (FLPMA) which repealed RS 2477. In FLPMA, Congress provided a new mechanism for the granting of rights-of-way across public lands (which by this time meant the land managed by the Bureau of Land Management, the BLM) from 1976 onward. However, in passing FLPMA, Congress made it absolutely clear that all pre-existing rights of way which had been granted during the preceding 110 years under RS 2477 were still valid and were in no way affected by the passage of FLPMA. This meant that while no new rights-of-way grants would be made under 2477 after 1976, all the thousands of grants previously made were still valid.
Much of the controversy over RS 2477 rights-of-way stems from efforts–initially by environmental activists but joined more recently by the Department of Interior–to alter after the fact or otherwise try to infringe on the property rights granted to state and local governments in trust for the public. The major administrative, legislative, and judicial issues
In recent years, much of the activity on the RS 2477 issue has taken place on several fronts. The Interior Department issued draft regulations in 1994 and created a firestorm of criticism because the draft twisted or ignored administrative and court rulings on RS 2477 issues and violated fundamental Constitutional rights. Legislation was also introduced in the 104th Congress to clarify and further codify these RS 2477 rights.
In the judicial arena, two specific 2477 rights-of-way cases are setting important precedents. One is the Shultz case in Alaska and the other is the Burr Trail Road case in Utah. A friend of the court’s brief on the Shultz case is available on this website. A summary of the findings in several Burr Trail Road cases is also available, as well as an interesting photo record illustrating some of the work which has been done on the Burr Trail Road which is the basis of past and current legal challenges.