On January 15, 1993, the American Law Division of the Congressional Research Service released a report entitled Highway Rights of Way: The Controversy Over Claims Under R.S. 2477(1).

The opening paragraph of the Report summarizes the issues of concern:

In 1866, Congress enacted a grant of rights of way over unreserved public lands for the “construction of highways.” The grant was originally section 8 of the Mining Law of 1866(2), and later became section 2477 of the Revised Statutes (R.S. 2477), then 43 U.S.C. 932, until its repeal in 1976, subject to valid existing rights, as part of the Federal Land Policy and Management Act (FLPMA). Recently a controversy has arisen as to whether and which rights of way may be claimed under the former grant. The issue is a significant one because such rights of way could still be important to the infrastructure of some states and counties, but could also disrupt management of the federal lands, possibly even resulting in disqualifying areas that are currently considered “roadless” from inclusion in the National Wilderness Preservation System.

The CRS Report is an inaccurate and biased analysis of the issues surrounding R.S. 2477 rights of way. By way of introduction, the Report proposes to provide an analysis of R.S. 2477 rights of way through an examination of its: 1) statutory interpretation; 2) historical context; 3) administrative interpretation, and 4) judicial interpretation. Finally, the Report proposes to offer some possible alternatives for resolving R.S. 2477 issues.

Instead, the Report analyzes the statutory “language” of R.S. 2477 by focusing solely on the term “highway” to the exclusion of other terms in the statute. It then draws a conclusion as to the meaning of the term based entirely on two dictionary definitions in complete disregard of the substantial body of available and pertinent literature to the contrary as well as decades of legal precedent. The “historical context” portion of the Report’s analysis consists of a series of unsubstantiated negative inferences drawn from subsequent enactments. The administrative interpretation totally discounts well-established BLM internal policy as “inconsistent” and thus not entitled to “any” deference. Likewise, years of well-established both state and federal legal doctrine pertaining to R.S. 2477 rights of way is summarily dismissed by the Report as not providing any “clear” precedent. Finally, the Report offers only one possible alternative for resolving R.S. 2477 issues, namely that the government establish new criteria for final R.S. 2477 determinations that comport with the Report’s new, more restrictive interpretation of the statute, although, at the same time, the Report concludes that, arguably, all R.S. 2477 claims are barred by the statute of limitations.

The problem with the CRS Report is not that others may disagree with its conclusions, but rather that these conclusions are not based on a fair analysis of the issues, and are in many instances, entirely unsubstantiated. In short, the CRS Report provides little evidence and mostly undocumented argument to support a preconceived hypothesis. Absent a fair and meaningful analysis and acknowledgment of the issues presented, the CRS Report does little to assist Congress.


The Report engages in an analysis of the terms in the statute by singling out the term “highway” as the operative term. It then proceeds to rely entirely on the definitions set forth in two historic dictionaries to conclude that the term “highway” means a significant road that has been constructed or improved by mechanical means prior to 1976. As discussed below in detail this analysis omits any reference to the substantial collection of nineteenth-century law dictionaries and treatises which define the term “highway” to the contrary as well as all legal precedent defining the term.

Despite the title of the CRS Report, it never analyzes the meaning of the term “right of way” as used in R.S. 2477. This is a particularly significant omission since the meaning of the term “highway” is logically and etymologically linked to the meaning of right of way. The law of ways has its origin in Roman civil law.(3) It was further developed in English common law(4) and adopted intact into early American law.(5) It was the legal framework commonly understood at the time R.S. 2477 was enacted. The interpretation advanced by the CRS Report is both historically inaccurate and legally erroneous.

Definition of “Highway”

The Report begins its analysis by stating that “there is a tendency for speakers to use the words highway and road interchangeably.”(6) It is important to note that the word “road” does not appear anywhere in the legislative language. The fact that modern speakers sometimes use the word road interchangeably for the word highway does not give the former term any significance or equivalency in interpreting the statute.

In fact, the spurious correlation of the words only confuses the issue. The term highway has a definite and clear meaning in Anglo-American property law: a right held by the public at large to travel across land belonging to another.(7) The conclusion in the CRS Report that “Congress intended “highways’ to mean “significant” roads has absolutely no basis in either the language or history of the statute.

The Report then draws a distinction between the words “road” and “highway” by comparing the definition of the two terms in the 1860 and 1865 editions of Webster’s American Dictionary of the English Language. It is curious that the CRS Report would rely on a Webster’s dictionary to define the term highway given the number of contemporaneous legal dictionaries available in the latter half of the nineteenth century. Standard usage dictionaries are notoriously imprecise in their exploration of legal terms. The Report does refer to a 1968 edition of Black’s Law Dictionary to explain modern usage but fails to consult nineteenth-century law dictionaries for historic usage.

Historic Law Dictionaries

Historic law dictionaries indicate that, in the technical sense, a right of way and a highway are not things (like a road) but are interests (rights) in real property.(8) In a more general sense the term highway refers to the land taken and prepared for public travel. This definition is supported by reference to sources contemporaneous with the passage of R.S. 2477. For example, the 1867 edition of Burrill’s Law Dictionary defines highway as:

A public way or road; a way or passage open to all; a way over which the public at large have a right of passage. Called in some of the old books, high street. Every thoroughfare which is used by the public, and is in the language of the English books, “common to all the king’s subjects” is a highway, whether it be a carriage-way, a horse-way, a foot-way or a navigable river. The word highway is the genus of all public ways.(9)

The 1879 edition of Abbott’s Dictionary of Terms and Phases Used in American or English Jurisprudence explains the term this way:

HIGHWAY. A road free to the public; a passage open to all persons.

There is a difference in the shade of meaning conveyed by two uses of the word. Sometimes it signifies right of free passage, in the abstract, not importing anything about or construction of the way. Thus a river is called a highway: and it has not been unusual for Congress, in granting a privilege of building a bridge to declare that it shall be a public highway. Again, it has reference to some system of law authorizing the taking of a strip of land and preparing and devoting it to the use of travelers . . . .(10)

The 1866 edition of Bouvier’s Law Dictionary is in accord:

HIGHWAY. A passage or road through the country, or some parts of it for the use of the people. The term highway is a generic name for all kinds of public ways.(11)

Brande’s 1867 Dictionary contains this entry:

Highway. In English Law, a highway is a way over which the public at large have a right of passage, and includes a horse road, or a mere footpath, as well as a carriage road. Any way common to all people, without distinction, is a highway.(12)

Holthouse’s New Law Dictionary (1847) reads:

Highway. Is a passage open to all the king’s subjects. It seems doubtful whether it must have been a thoroughfare. It may be a footway, or pack or prime way, (which is both a horse and footway), or a cartway; for “highway is the genus of all public ways, as well cart and horse as footways.”(13)

Wharton’s Law Lexicon (1848) defines highways as ” [p]ublic roads, which every subject of this kingdom has a right to use.(14)

Cowdery’s Pacific Law Encyclopedia (1872) contains this entry:

Highway. By the common law the fee in the soil remains in the original owner where a public road is made upon it; but the use of the road is in the public.(15)

Peloubet’s Student’s Law Dictionary (1879) states simply that a highway is “[a]

street, passage, road or way, by land or water, which every citizen has a right to use.(16)

In every one of these dictionaries, a highway is a public passage or way across land. It may be a road, but other transportation modes such as a footpath may also qualify. The single defining characteristic of a highway is that the way is public. The physical characteristics of the road or other way are irrelevant to the concept of a highway.

Black’s Law Dictionary

The essential meaning of the word highway is also clear in modern law dictionaries. For instance, Black’s Law Dictionary contains the following:

HIGHWAY. An easement acquired by the public in the use of a road or way for thoroughfare. Bolender v. Southern Michigan Telephone Co., 182 Mich. 646, 148 N.W. 697, 700.

A free and public roadway, or street: one which every person has the right to use. Abbott v. Duluth, C.C. Minn., 104 F. 837. Illinois Cent. R. Co. v. Bennett, C.C. Miss., 296 F. 436, 437. Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other. Hildebrand v. Southern Bell Telephone & Telegraph Co., 219 N.C. 402, 14 S.E. 2d 252, 254, 255.(17)

As an example of its selective editing, the CRS Report refers to the same entry in Black’s Law Dictionary but omits the prime definition quoted above, opting instead to use annotated explanatory material set in smaller type at the end of the definition.(18) It is interesting to note that the CRS Report omitted a citation to Abbott’s Dictionary(19) in the portion of the Black’s Law Dictionary definition it quoted. In addition, both the Illinois Central Railroad(20) and Abbott(21) cases cited in Black’s prime definitions cite Bouvier’s Law Dictionary(22) as authority. The reference to these historic law dictionaries in a modern edition of Black’s indicates that the former continue to be valid authority.

Historic Treatises

The CRS Report also omits all references to a number of treatises and commentaries on the law of highways that were in common use in the mid-nineteenth century. Kent’s three-volume Commentaries on American Law is regarded as one of the most authoritative sources of this period. In his chapter on real property, Kent offers this definition of highways:

Every thoroughfare which is used by the public and is, in the language of the English books, “common to all the king’s subjects,” is a highway, whether it be a carriage-way, a horse-way, a foot-way, or a navigable river. It is, says Lord Holt, the genus of all public ways.(23)

Thompson’s A Practical Treatise on the Law of Highways (1868), citing Kent and Brande, states similarly:

A highway is a way over which the public at large have a right of passage, whether it be a carriage way, a horse way, a footway, or a navigable river. It was considered formerly that no way which did not lead to a market town was a highway: but it is now well settled that any way common to all people, without distinction, is a highway.(24)

Thompson also discusses cases and authorities finding cul de sacs (i.e., non-thoroughfares), streets, turnpike and plank roads, railroads, bridges, and ferries as highways where the public has a right of free passage.(25)

Another treatise, Angell & Durfee’s Law of Highways also cites Kent and Brande for the proposition that “[h]ighways are public roads, which every citizen has a right to use.”(26) They further observe that:

Highways are of various kinds, according to the state of civilization and wealth of the country through which they are constructed, and according to the nature and extent of the traffic to be carried upon them, from the rude paths of the aboriginal people, carried in direct lines over the natural surface of the country, passable only by passengers or pack-horses, to the comparatively perfect modern thoroughfare.(27)

Contemporaneous English treatises, such as Shelford’s Law of Highways, defined highway as “the general term applied to all public ways which include carriageways, cartways, horseways, bridleways, footways, causeways, churchways and pavements.”(28)

Another English treatise, Egremont’s The Law Relating to Highways, begins by observing that

[i]n considering the law relating to highways, it will be necessary to bear in mind that a “way” is merely the surface of that portion of land over which certain individuals or the public in general are entitled to pass and repass.(29)

After discussing distinction among several types of ways, Egremont continues:

Whatever distinctions may exist among these several kinds of way, it is an established point that any one of them may be, either private, where the right of passing and repassing in limited to certain persons; or public, where all persons have a right of passage, in which case it is called a highway.(30)

Another slightly later treatise, Elliott’s The Law of Roads and Streets echoes prior commentators: “Ways are either public or private. A way open to all the people is a highway. The term highway is the generic name for all kinds of public ways . . . .”(31)

On the issue of whether a highway must be a thoroughfare, Egremont also notes that “[i]t is clear that a road may be a highway, though it does not lead to a market town; for there were highways before there were market towns.”(32) This latter point is particularly relevant to frontier America and laws such as R.S. 2477 which were intended to permit transit across vast expanses of uninhabited public land. Had Congress intended R.S. 2477 to only apply to highways connecting communities or towns, few if any would have qualified in the decades following its enactment.


In addition to these dictionaries and treatises, there exists a substantial body of case law defining the term highway which was not referred to in the Report. For example, in Parson v. Wright,(33) the Supreme Court of North Carolina, in determining that a cartway was a public road, explained the term highway as a “generic name for all kinds of public ways” in the sense that they are open to all who see fir to use them. Similarly, in Summerhill v. Shannon,(34) the term highway was defined as “a passage, road, or street which every citizen has a right to use “including every public thoroughfare, whether carriageway, horse way, footway, or navigable river.” Likewise, in Harris v. Hanson,(35) the court defined the term highway as used in the Idaho Code as “every way or place of whatever nature open to the public as a matter of right…”

These examples make it clear that a highway is a right held by the public at large to travel over land belonging to another. It would not be necessary to repeat this obvious and straightforward proposition but for the fact that its significance seems lost on CRS. None of the Nineteenth-century authorities surveyed ever alluded to a highway as a more “significant” road in the sense of being constructed or improved by mechanical means. Even the historic editions of Webster’s dictionary upon which the CRS Report relies do not use words such as “significant”, “constructed improvement” or like terms. These are merely unsupported and mis-characterized conclusions which do not consider the simple tenets of an ancient and coherent body of law. Clearly, all would agree, at the very least, given the vast resources available, Congress is entitled to something more sophisticated by way of analysis than a conclusion based upon general dictionaries.


The CRS Report goes on to analyze R.S. 2477 by comparison to and in connection with a series of unrelated subsequent statutory enactments as a means of determining the legislative intent of the 1866 Act. However, as a preliminary matter, what a later Congress intended can be of no help in determining what an earlier Congress meant. In fact, from a legal standpoint, this portion of the Report’s analysis is entirely irrelevant(36) and for the most part self-serving(37).

As a basic principle of statutory construction, statutes passed after the Act at hand cannot be used to infer its legislative intent and any attempt to do so is typically refused by courts. For example, in Sierra Club v. Hodel(38), the Tenth Circuit Court flatly rejected the Sierra Club’s attempt to apply the policies behind the passage of the Federal Land Act Policy and Management Act (FLPMA) as a source of determining the legislative intent of R.S. 2477.(39) In this regard, the Court in Hodel stated “it is incongruous to determine the source of interpretative law for one statute based on the goals and policies of a separate statute conceived 110 years later. Rather the need for uniformity should be assessed in terms of Congress’ intent at the time of R.S. 2477’s passage.”(40)

Notwithstanding this clear legal precedent to the contrary, the CRS Report nonetheless engages in an application of FLPMA as a means of arriving at its preconceived conclusions about R.S. 2477. This application and subsequent analysis of FLPMA is perhaps the single most revealing instance of the Report’s bias and apparent agenda. After the Report has exchanged long-standing precedent in favor of a new, more restrictive definition of “highway” that definition then coincidentally mirrors, verbatim, the definition of “road” (or the criteria for “roadless”) set forth in the Wilderness Inventory Handbook,(41) prepared to assist the BLM with conducting a wilderness suitability inventory pursuant to Section 603 of FLPMA. That section provides, in relevant part:

Roadless: For the purpose of the wilderness review program, this refers to the absence of roads which have been improved and maintained by mechanical means to ensure relatively regular and continuous use. A way maintained solely by the passage of vehicles does not constitute a road.(42)

The CRS Report then argues that, since Congress “undoubtedly” was aware of R.S. 2477 when it used and commented on the term “roadless,” it would be “incongruous” that the more significant term “highway” would means something less than a road.(43) So, the argument continues, the interpretation Congress gave to the term “road” in 1976 is therefore more consistent with an 1866 definition of highway as a constructed or improved road that served as a significant public connector.”(44) The Report then concludes that reading the terms “highway” and “road” together, “highways” would be roads that were improved and maintained by mechanical means to ensure relatively regular and continuous use that were used regularly by the public, and that served as important connectors, such as by connecting towns and villages.”(45)

In this regard, the CRS Report begins with the introductory premise that “generous” terms for qualifying R.S. 2477 highways could cause R.S. 2477 rights to “disrupt management of the federal lands possibly even resulting in disqualifying areas that are currently considered “roadless” from inclusion in the National Wilderness Preservation System.(46) The Report then comes up with a more restrictive definition of the term “highway” as used in the statute meaning a more significant road constructed or improved by mechanical means prior to 1976. Then because this definition is identical to the one adopted by Congress when it passed FLPMA, the Report concludes that Congress must have intended the same definition when it passed R.S. 2477 in 1866 as it did when it passed FLPMA in 1976. Under Hodel, it is simply “incongruous to determine the source of interpretative law to one statute based on the goals and policies of a separate statute conceived 110 years later.”(47) Accordingly, this conclusion should be likewise disregarded.

The Report’s use of FLPMA to interpret the legislative intent behind R.S. 2477 clearly indicates that the author began with an hypothesis and set out to prove it. Presumably, under the Report’s more restrictive definition of an R.S. 2477 “highway” the statute will no longer have the Report’s perceived potential to “disrupt” or “frustrate” wilderness designation. This type of circular reasoning is absolutely unacceptable in a report intended to provide Congress with a fair assessment of the issues to assist in the formulation of policy.


Having reached a definition of “highway” which comports with the terms used in FLPMA, the CRS Report goes on to attempt to reconcile its definition with years of administrative policy clearly to the contrary. As mentioned above, the CRS Report begins with the premise that a 1988 Departmental Policy Statement(48) set forth “generous” terms for qualifying R.S. 2477 highways. The CRS Report concludes that, as such, the 1988 Policy Statement is the catalyst for the controversies that arose as to which roads might still might be claimed as R.S. 2477 rights of way. In this regard, the Report states

There does not seem to have been any controversy until after the issuance of the 1988 Policy Statement, which contained generous terms for qualifying highways, together with a growing awareness that R.S. 2477 roads could be used to frustrate the designation of new wilderness areas by disqualifying areas from being considered to be ‘roadless.’(49)

No other sentence in the Report is more replete with preconceived conclusions, assumptions and inaccuracies. First, the Report’s conclusions that there does not seem to have been “any” controversy until after the issuance of the 1988 Policy Statement is patently false. The 1988 Policy Statement specifically begins with the recognition that “[a]lthough R.S. 2477 was repealed nearly twelve years ago, controversies periodically arise“regarding whether a public highway was established under R.S. 2477 and the extent of the rights obtained under the grant.(50) It is obvious from Secretary Hodel’s statement that the periodic controversies which already had arisen precipitated the need for the 1988 Policy Statement to clarify the issues rather than the other way around as the CRS Report concludes. In a similar vein, the Report also frames the perceived controversy backwards. The controversy arises, if at all, not because R.S. 2477 rights of way might be used to interfere or invalidate wilderness designation but rather because these wilderness areas were improperly designated as such to begin with if, in fact, they contained R.S. 2477 roads.

Second, the Report’s characterization of the terms set out in the 1988 Policy Statement as “generous” is not an objective view. Generous as compared to what reference? The two dictionaries the Report relies upon to the exclusion of a substantial body of law? As compared to the Report’s new, more restrictive and less “generous” definition as set forth coincidentally in FLPMA?

Finally, the Report’s conclusion that these “generous” terms coupled with a “growing awareness” (by unnamed persons or entities) that claiming such roads might “disqualify areas previously considered roadless from eligibility for wilderness” is responsible for the present controversy is entirely misleading and inaccurate. The single most controversial case involving an R.S. 2477 right of way, Sierra Club v. Hodel,(51) commenced litigation prior to the dissemination of the 1988 Policy Statement and, in no sense, dealt with “disqualification” of a wilderness area from consideration. Though the Report continuously asserts this claim throughout, it fails to provide a single instance where the criteria set forth and the terms used in the 1988 Policy Statement has resulted in a challenge to wilderness designation. In fact, one of the most recent cases involving an R.S. 2477 right of way concerned the scope of the right of way on portions of a road which did not even border a Wilderness Study Area, but rather involved a conflict between federal case law and BLM policy on the issue.(52)

In focusing on the perceived threat to wilderness by unidentified parties, the Report obscures the actual issues which were raised by these cases, namely, the scope of an R.S. 2477 right of way and the role of the BLM with respect to its authority to regulate activities in that regard. In both Hodel and Emery County, the counties proposed improvements which were absolutely necessary to comply with ASHTO standards, and were designed solely for the safety of the traveling public. Therefore, the current conflicts arise not from the threat to wilderness designation, but from the inability of counties to improve valid R.S. 2477 roads for the purpose of ensuring safe passage within the constraints of BLM policy.

Having cast the 1988 Policy Statement as the catalyst for the more sensational but unsubstantiated issues raised by R.S. 2477, the CRS Report then proceeds to summarily dismiss years of well-reasoned administrative policy interpreting R.S. 2477 as “inconsistent” and thus not entitled to “any deference” without providing any analysis for the conclusion. Further, in dismissing existing administrative policy, the Report disregards the fact that R.S. 2477 right holders on the one hand, and private landowners and the BLM as custodian of the public lands, on the other, have developed property relationships around each particular state’s definition of the scope of an R.S. 2477 road.(53) It is unfortunate, and not at all beneficial to Congress, that the Report does not address these more realistic and unresolved issues which truly represent the current controversy rather than focusing on the perceived but not actual threat to wilderness designation.


Similarly, just as the Report dismisses decades of agency policy as inconsistent, it goes on to disregard years of well-established legal precedent with this single statement. “Judicial interpretation of R.S. 2477 has been inconsistent and provides little clear precedent.” The Report bases this conclusion, first on the fact that, for the most part, the cases were in state court, prior to FLPMA, did not involve the federal government and thus are not binding with respect to federal issues. In addition, the Report dismisses the principal cases dealing with R.S. 2477, namely, the Burr Trail litany based on the author’s view that the court “sometimes indulged in sweeping dicta” rendering them “non-binding.”

Interestingly, most of the Report’s conclusions dismissing judicial precedent for one reason or another have already been raised by environmental groups and have been summarily rejected by federal courts. For example, in Sierra Club v. Hodel the salient issue presented was whether the scope of R.S. 2477 rights of way is a question of state or federal law.(54) The Sierra Club argued, as the CRS Report does in this case, that since the 1988 Policy Statement has interpreted R.S. 2477 in accordance with state law, BLM’s interpretation should be disregarded as inconsistent based on a 1980 opinion letter stating to the contrary and further that state law should play no role in the determination of the existence and scope of R.S. 2477 rights of way.(55) The court in Hodel explicitly rejected this argument stating that the position “clearly conflicts with more than four decades of agency precedent, subsequent BLM policy as expressed in the BLM Manual, and over a century of state court jurisprudence.(56) Instead, the court announced the present governing rule of law that “as a matter of federal law, state law has been designated as controlling” in determining the existence and scope of an R.S. 2477 right of way.(57)

Notwithstanding the clear weight of legal precedent to the contrary, the CRS Report nonetheless advocates a dismissal of these cases in favor of the new more restrictive, federal criteria it suggests. This position was likewise flatly rejected by the court in Hodel which stated:

the adoption of a federal definition of R.S. 2477 roads would have very little practical value to BLM. State law has defined R.S. 2477 grants since the statute’s inception. A new federal standard would necessitate the remeasurement and re-demarcation of thousands of R.S. 2477 rights of way across the country, an administrative dust storm that would choke the BLM’s ability to manage the public lands. . . (58)

The court in Hodel went on to find that imposing a federal definition of R.S. 2477 rights of way would undermine the local management of roads across the western United States.(59) In this regard, the court recognized that “[o]ver the past 125 years, each western state has developed its own state-based definition of the protection or scope of the R.S. 2477 grant….(60)

Notwithstanding this incredibly clear statement of law, the CRS Report nonetheless concludes that “[o]ne of the most fundamental and thorny issues is the proper role of state law in defining R.S. 2477 rights of way. Clearly, there is some role for state law to play, but some of the state court holdings seem to have overstated this role.”(61) The CRS Report goes on to conclude that “[t]he role for federal law is open to debate . . .” despite the unquestionable holding of the court in Hodel.(62) It is difficult, if not inconceivable, to explain why the CRS Report whose purpose is to provide a fair assessment of the issues to Congress, chooses to propose an alternative which has been so resoundingly and consistently rejected by federal courts. By way of justification for its position the Report offers only that, because the roads in question in these cases, would have qualified as an R.S. 2477 under either state or federal law, the court evidently did not need to address which law to apply and thus the above language is “dicta.”

Dicta as Rule of Law

The Report seems to use the term dicta to mean generalizations or rules which goes beyond the most narrow basis upon which a case could be decided.(63) This is a misstatement of the doctrine.

Dicta is a statement or holding in an opinion not responsive to any issue and not necessary to the discussion of the case.(64) However, when a point is properly presented and decided it is not dicta merely because something else was found in the end which disposed of the whole matter.(65) Accordingly, a point expressly decided does not lose its value as a precedent because the disposition is(66) or might have been(67) decided on some other ground. Where a decision rests on two or more grounds, choosing one as the holding does not automatically relegate the remainder to the category of dicta.(68)

Two other distinctions are particularly applicable to reports such as those produced by CRS. Where a particular question before a court calls for the application of a broad principle of law, which could have a number of applications, the statement of the court of a further application of the same principle to demonstrate the wide scope of the applicability is not dicta.(69) Furthermore an expression which might otherwise be regarded as dictum becomes an authoritative statement when it is expressly declared by the court as a guide for future conduct.(70) Since the CRS Report does not appear to have accounted for any of these distinctions, its conclusions as to dicta are questionable at best. PROPOSED ALTERNATIVES

Finally, the Report proposes as alternatives for resolving some of the R.S. 2477 issues only the new, more restrictive definition of highway as previously discussed followed by its conclusion that the statute of limitations for contesting such determinations may well have run.(71) These alternatives are succinctly set forth by the Report as follows:

Both because of the issues regarding the proper interpretation of the 1866 Act and FLPMA and because of the apparent absence of a judicial avenue now to contest adverse R.S. 2477 determinations by the Department, Congress may wish to consider further action to clarify the statutory questions or to provide a deadline and final process and standards for ratifying clearly qualifying highways and making and appealing disputed R.S. 2477 claims.(72)

The Report’s conclusion that there is an apparent “absence of a judicial avenue now to contest adverse R.S. 2477 determinations” is entirely unsubstantiated and completely lacking in authority and analysis. The Report boldly makes the assertion that “when Congress repealed R.S. 2477 in its entirety in 1976, this constituted notice that R.S. 2477 rights of way could no longer be initiated.”(73) Without quoting 28 U.S.C. Sec. 2409(a), the Report references this provision as placing a twelve-year statute of limitations on quiet title actions against the federal government, then concludes that, since more than twelve years have passed since 1976, all R.S. 2477 claims arguably are barred.

Section 2409(f) provides in, relevant part, that:

Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known the claim of the United States.

This provision makes it clear that the statute of limitations for contesting any R.S. 2477 administrative determination does not begin to run until the determination is made. However, the CRS Report argues, without authority, that the repeal of R.S. 2477 together with BLM notices to states of the fact and the regulations requesting states and localities to submit R.S. 2477 assertions “constituted notice” evidently of an adverse claim pursuant to 28 U.S.C. Sec. 2409.

This argument misinterprets entirely both the effect of the repeal of R.S. 2477 and its relationship to the statute of limitations. By the Report’s own admission, the repeal of R.S. 2477 “constituted notice that R.S. 2477 rights of way could no longer be initiated.”(74) The repeal of R.S. 2477 does not constitute a claim that valid existing R.S. 2477 rights are not valid. In fact, FLPMA explicitly repealed R.S. 2477 subject to valid existing rights which the Report acknowledges in its introduction. Therefore, in no way has the statute of limitations begun to run on valid R.S. 2477 roads that were granted although not acknowledged prior to 1976.

Moreover, an R.S. 2477 right of way does not depend on a BLM administrative determination for its validity. Departmental Policy specifically recognizes that an administrative determination does not equal acceptance of the R.S. 2477 grant. “Acceptance of the grant occurred when a public highway was constructed on unreserved public lands [ir]regardless of whether BLM has acknowledge the action.”(75) Accordingly, none of the factors or reasoning cited by the CRS Report would allow the statute of limitations to preclude R.S. 2477 claims.


In conclusion, the CRS Report proposes to provide an analysis of R.S. 2477 issues through an examination of its: 1) statutory interpretation; 2) historical context; 3) administrative and 4) judicial interpretation and proposes to offer alternatives for resolving these issues. Instead, the Report contrives a new, more restrictive definition for the term “highway” based upon two general dictionary definitions without reference to a substantial body of law to the contrary. The Report’s review of the historical context of the 1866 Act consists of negative inferences drawn from a series of unrelated subsequent statutory enactments that support its definition and disregards years of well-reasoned administrative policy to the detriment of established relationships. In addition to dismissing existing administrative policy as “inconsistent,” the Report likewise dismisses four decades of case law dealing with R.S. 2477 rights of way as not providing any “clear” precedent.

The only alternative proposed by the CRS Report is the adoption of its new, more restrictive definition in direct contradiction to well-developed federal case law. Finally, the Report concludes, absent any legal basis for doing so, that R.S. 2477 claims are, arguably, barred by the statute of limitations. Based on the Report’s own skewed interpretation of the issues presented and “the apparent absence of a judicial avenue to contest adverse R.S. 2477 determinations,” the CRS Report suggests that Congress take action to impose a “deadline” which it would apparently have no legal basis to impose.

1. (* Patricia Geary, David G. Dye, Richard Houghton, Rebecca F. Dye, and D. Lee Forsgren contributed to these comments.) American Law Division, Congressional Research Service, Highway Rights of Way: The Controversy Over Claims Under R.S. 2477 (Jan. 15, 1993)[hereinafter CRS Report].

2. “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.” Act of July 26, 1886, ch. 262, 14 Stat. 251 (codified at former 43 U.S.C. 932 (1972)).

3. Alexander M. Burrill, A Law Dictionary and Glossary 588 (1867).

4. See James Kent, 3 Commentaries on American Law 548 (1866).

5. See Isaac Thompson, A Practical Treatise on the Law of Highways 1 (1868).

6. CRS Reportsupra, note 1, at 7.

7. “A highway is a way open to the public at large, for travel or transportation,without distinction, discrimination , or restriction….It is the right of travel by all the world, and not the exercise of the right, which constitutes a way a public highway, and the amount of travel upon it is not material…. It is not essential to a highway that it be a thoroughfare, but rather it may terminate without connecting with another road at one end, or even at both ends.” (citations omitted) 39 Am Jur 2d 400-01.

8. Technically, ways (including highways) are a subdivision of real property called incorporeal hereditaments. In 19th Century American law this class of rights consisted of commons, ways, easements and aquatic rights, offices, franchises, annuities and rents. A. Burrill, supra, note 3, at 65. (citing Kent’s Commentaries on American Law)

9. Burrill, supranote 3, at 23 (citations omitted).

10. Benjamin Abbott, 1 Dictionary of Terms and Phrases Used in American or English Jurisprudence 562 (1879).

11. John Bouvier, 2 A Law Dictionary 586 (1866)(citations omitted).

12. W.T. Brande, ed., 3 A Dictionary of Science, Literature & Art 125 (1867)(citations omitted).

13. Henry J. Holthouse, A New Law Dictionary 234 (1847)(citation omitted).

14. J.J. Wharton, The Law Lexicon or Dictionary of Jurisprudence 446 (1848).

15. Jabez F. Cowdery, The Pacific Law Encyclopedia 728 (1872).

16. Seymour Peloubet, The Student Law Dictionary of Words and Phrases 98 (1879).

17. Black’s Law Dictionary 862 (4th ed. 1968).

18. CRS Reportsupra, note 1, at 5 n.13.

19. B. Abbott, supra, note 10.

20. 296 F. 437.

21. 104 F. 837.

22. J. Bouvier, supra, note 11.

23. J. Kent, supra, note 4, at 548 (citation omitted).

24. I. Thompson, supra, note 5, at 1 (citations omitted).

25. Id, at 3-14.

26. Joseph K. Angell & Thomas Durfee, A Treatise on the Law of Highways 3 (2d ed. 1868).

27. Id, at 3.

28. Leonard Shelford, The Law of Highways in England and Wales 7 (1862).

29. John Egremont, The Law Relating to Highways, Turnpike Roads, Public Bridges and Navigable Rivers 1 (1830).

30. Id, at 2.

31. Byron K. Elliott, A Treatise on the Law of Roads and Streets 1 (1890).

32. Id, at 3. See also, H. Holthouse, supra, note 13, at 234; I. Thompson,supra, note 5, at 3; and J. Angell & T. Durfee, supra, note 26, at 19. For modern authority see e.g., 39 Am Jur 2d, note 7, at 401.

33. 27 S.E.2d 534, 536 (S. Ct. North Carolina 1943)

34. 361 S.W.2d 271, (S. Ark. 1962)(citing Bouvier’s Law Dictionary, Rawle’s 3d Rev. p. 1438); Webster’s International DictionaryConrad v. State</u>, 174 Ark. 918, 298 S.W. 24 ( Roadway within local fairground was a public highway).

35. D.C.S.D. (1948) Idaho, 75 F. Supp. 481, 482.

36. For instance, the Report discusses The Unlawful Inclosures of Public Lands Act of 1885. Act of Feb. 25, 1885, ch. 149, 23 Stat. 321 (codified at 43 U.S.C. 1061, 1066 (1990). The 1885 Act provided, inter alia, that “[n]o person shall prevent or obstruct free passage or transit over or through the public lands . . . .” 23 Stat. at 322. The Report argues that this language is inconsistent with an interpretation of R.S.2477 as a grant encompassing all types of ways but is consistent with the premise that the grant only applied to improved roads. This argument only serves to obscure the fact that the 1885 Act is primarily a penalty provision for the transient obstruction of passage over public lands. See McKelvey v. United States, 260 U.S. 353, 357 (1922). During the House debate on the legislation, Congressman McAdoo explained that “the bill in my judgment simply reaches those who with deliberate criminal intent go upon the public lands and occupy them unlawfully.” 15 Cong.Rec. 4778 ( June 3, 1884)

37. The Report does not refer to the Act of May 9, 1866, enacted only two months prior to R.S.2477. Act of May 9, 1866, 14 Stat. 45. It empowered the levy court of Washington, D.C. to “Declare and locate as public highways” such roads known and used as military roads in said district during the rebellion….” Thus the Congress by simple dedication changed a number of existing military roads into highways, i.e. made them open to the public. The level of improvement appears to be irrelevant to this change in status. This enactment is consistent with the law of highways as commonly understood at the time and is inconsistent with the notion that a highway is nothing more than an improved road.

The Report refers to several federal statutes from the 1860s authorizing the building of highly constructed roads. CRS Report, supra, note 1, at 12. It seems to attaches no particular significance to the fact that some of these roads were specifically dedicated as public highways. The report does not ask the obvious question of why Congress dedicated these roads if, as the Report asserts, a highway means an improved road and nothing more. If the Report’s thesis is correct, Congress repeatedly enacted superfluous words, a presumption to be avoided by standard rules of statutory construction.

38. 675 F.Supp. 594 (D. Utah 1987), 848 F.2d 1068 (10th Cir. 1988), 737 F.Supp. 629 (D. Utah 1990)(the “Burr Trail” case)

39. Id at 1082.

40. Id. citing Leo Sheep Co. vs. United States, 440 U.s. 668, 681-82 + n. 18, 995 Ct 1403, 1410-11 n. 18, 591 Ed 2d 677 (1979).

41. USDI Bureau of Land Management 5 (September 27, 1978)

42. Id. (emphasis added).

43. CRS Reportsupra, note 1, at 1 and 4..

44. Id.

45. Id.

46. CRS Reportsupra, note 1, at 18.

47. Hodelsupra, note 38, at 1082.

48. Departmental Policy Statement on Section 8 of the Act of July 26, 1866, Revised Statute 2477 (Repealed) Grant of Right of way for Public Highways, (R.S. 2477), December 7, 1988 (“1988 Policy Statement”).

49. CRS Reportsupra, note 1, at 18.

50. 1988 Policy Statement, supra, note 48, at 1.

51. Hodel, supra, note 38, at 1068.

52. See, U.S. vs. Emery County, Civil No. 92-C-1065 (D. Utah, filed December 15, 1992).

53. See Hodel, supra, note 38, at 1083.

54. Id, at 1080.

55. Id.

56. Id. at 1082 (emphasis added).

57. Id.

58. Id. (emphasis added)

59. Id.

60. Id.

61. CRS Reportsupra, note 1, at 20.

62. Id at p. 29.

63. Id at 19.

64. Icyclair, Inc. v. District Court for Southern District of California, C.C.A. Cal., 93 F.2d 625, 627 (1937).

65. Florida Cent. R. Co. v. Schutte, 103 U.S. 118,143 (1888).

66. Wagner v. Corn Products Refining Co., 28 F.2d 617, 619 (D.N.J. 1928).

67. Weedin v. Tayokichi Yamada, C.C.A. Wash., 4 F.2d 455, 457 (1925).

68. See Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949). See also Manley v. Manley, 164 A2d, 113, 119, Pa. Super 252 (1960).

69. Ex Parte Sullivan, 189 P.2d 338, 347, 65 Nev. 128 (1948)

70. Chance v. Guaranty Tr. Co. of New York, 298 N.Y.S. 17, 22, 164 Misc. 346 (1937).

71. CRS Report, supra, note 1, at 39.

72. Id.

73. Id. (emphasis added)

74. Id at 38.

75. 1988 Policy Statement, supra, note 48, at 4. (citing BLM Manual 2801.48B2)