Pacific Legal Foundation Amicus Brief Opposing Rehearing In Schultz v. Department of the Army

Note: The Shultz Case, along with the several decisions on the Burr Trail Road, is one of the most significant of the recent legal actions on 2477 issues. This memorandum touches on some of the key findings in that case and summarizes some of the significant precedents.

On Appeal from the United States District Court for the District of Alaska



Amici Pacific Legal Foundation, Resource Development Council for Alaska, and Alaska Miners Association adopt the statement of the jurisdiction, issues, and of the case as has been filed in the case in chief by Paul G. Shultz.

Amici are concerned that the government is attempting to take a relatively minor access case and use it as a vehicle for substantial changes in the law concerning the recognition and scope of rights-of-way granted under Revised Statute 2477 (R.S. 2477). This Court’s reasoned opinion below correctly recognized the true scope of R.S. 2477 rights-of-way in Alaska and should not be upset.


The government and supporting amici argue that this Court’s decision will cause problems for property owners and the public lands if it is allowed to stand. In fact, the opposite is true. For example, the government argues that the decision is “threatening to burden landowners with undetectable property interests.” Government’s petition at 1. In fact, far from being a burden, this decision will be of great help to property owners in the State of Alaska. Without access, the property is usually virtually worthless. However, access trails have been developed in Alaska for many years following the enactment of R.S. 2477. Those trails, which qualify as highways under state law and R.S. 2477, provide added utility and value to these private lands. This is true for all types of private inholdings in Alaska, whether they be mining claims or the land claims of native Alaskans pursuant to the Alaska Native Claims Settlement Act.(1)

Nor is it likely that this Court’s decision will dramatically upset the status quo in the lower 48. First of all, the decision is heavily dependent on Alaska state law and unique Alaskan conditions. It will not pave the way for highways into the Grand Canyon. It will, however, allow continued access across existing rights-of-way in Alaska, even when some deviation from the original right-of-way is required because of adverse physical conditions.

A. The Creation and Existence of R.S. 2477 Rights-of-Way Are Governed by State Laws Which Have Traditionally Interpreted the Statute Broadly

The government’s accusation that this Court’s interpretation of the meaning of R.S. 2477 rights-of-way is too liberal is off the mark. Courts from a variety of states have long adopted broad interpretations of the statute.

The language of the R.S. 2477 is quite simple: “The right-of-way for the construction of highways over public lands not reserved for public uses, is hereby granted.” R.S. 2477, formerly 43 U.S.C. 932 (repealed 1976). The establishment of a “highway” under R.S. 2477 is dependent upon state law. Traditionally it has been thought that so long as a highway had been created under the laws of a state or territory, a valid R.S. 2477 route had been established. Thus, in Ball v. Stephens, 68 Cal. App. 2d 843, 846 (1945), a California Court of Appeal held that “in order that a road should become a public highway … it [must] be established in accordance with the laws of the state in which it was located.”

Similarly, in Smith v. Mitchell, 58 P. 667, 668 (Wash. 1899), the Supreme Court of Washington plainly stated that the establishment of an R.S. 2477 right-of-way should be liberally construed:

“R.S. 2477 … does not make any distinction as to the methods recognized by law for the establishment of a highway. It is an unequivocal grant of right of way for highways over public lands, without any limitation as to the method for their establishment, and hence a highway may be established across or upon public lands in any of the ways recognized by the law of the state in which such lands are located …. Any other conclusion would occasion a serious public inconvenience.”

Id. (quoted with approval in United States v. 9,947.71 Acres of Land, More or Less, in the County of Clark, Nevada, 220 F. Supp. 328, 335 (D. Nev. 1963)).

In Ball, the court also noted that in California “[d]edication could also be effected without action by the state or county.” Id. at 846. What was needed is evidence of “sufficient public use.” Id.

Thus, under the law of California, a road or trail could become a public highway merely through development and use. No affirmative steps by the state or local government were required. If at the time the highway was created, it was on nonreserved federal land, it would be an R.S. 2477 right-of-way.

In United States v. Gates of the Mountains Lakeshore Homes, Inc., 732 F.2d 1411 (9th Cir. 1984), the Ninth Circuit determined that the federal government could, if it so chose, acquiesce to a state law determination of what was and what was not a valid R.S. 2477 right-of-way. In that case, the court was confronted with an attempt to place utility lines along an alleged R.S. 2477 right-of-way.

While this Court ultimately found that another right-of-way law-governed utility corridors and that the existence of an R.S. 2477 right-of-way was irrelevant as to whether utility lines could be put down, the court also provided some dicta concerning how R.S. 2477 rights-of-way are established. The court began by noting that “[t]he scope of a grant of federal land is, of course, a question of federal law. But in some instances `it may be determined as a matter of federal law that the United States has impliedly adopted and assented to a state rule of construction as applicable to its conveyances.’” 732 F.2d at 1413 (quoting United States v. Oregon, 295 U. S. 1 (1935)) (citation omitted). Of course, if the question of what it takes to establish a public highway, and concomitantly an R.S. 2477 highway, is dependent upon the law of the states, then the criteria for what is necessary to establish such a right-of-way would be different in every state.

After Gates was decided, the Tenth Circuit Court of Appeals explained further that in the case of R.S. 2477 routes, the Bureau of Land Management (BLM) had affirmatively assented to state law determinations. Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988). Although not binding on this circuit, the reasoning of this decision is very persuasive. The court referred to Gates noting that the Gates court recognized that the United States could assent to a state law understanding of the creation of an R.S. 2477 highway. The Sierra Club court continued to note that the only reason why the court in Gates did not follow state law was because it was not dealing with an R.S. 2477 right-of-way but with a utility easement covered by a different statute.

Sierra Club makes it clear that state law plays a significant role in the determination of the existence and scope of R.S. 2477 rights-of-way. In response to Sierra Club’s argument that state law “plays no role whatsoever,” the court responded that Sierra Club’s 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.” 848 F.2d at 1081. Thus, because the federal government did acquiesce to state law, R.S. 2477 rights-of-way created in accordance with state law definitives passed irrevocably to the states.

Most instructive of all, perhaps, is Wilderness Society v. Morton, 479 F.2d 842, 882-83 (D.C. Cir. 1973), where the District of Columbia Circuit Court of Appeals considered a challenge to Alaska’s assertion of an R.S. 2477 right-of-way to be used for the trans-Alaska pipeline. In that case, the purpose for transporting oil was found to be an appropriate application of R.S. 2477. The court also noted that “[s]ince the section acts as a present grant, it is normally not even necessary for the builder of the highway to apply for a right-of-way. [Citing federal regulations.] `No application should be filed … as no action on the part of the [federal] Government is necessary.’” 479 F.2d at 882 n.90.

The Wilderness Society court continued to note that because the land in question was closed to entry prior to the establishment of the road, in that particular circumstance, the government was required to affirmatively grant the rights-of-way. However, in normal circumstances, it is clear that no affirmative action is required by the federal government.

B. State Law Can Allow Some Deviation from a Fixed Physical Location for R.S. 2477 Rights-of-Way

The National Parks & Conservation Association (NPCA) advances an argument which is quite similar to the one that Sierra Club lost in Sierra Club, namely that once a right-of-way is physically located on the ground, there can be no deviation from the precise physical location. In Sierra Club, the Tenth Circuit rejected the argument that the repeal of R.S. 2477 in 1976 caused the “freezing” of the rights-of-way to their precise 1976 widths. 848 F.2d at 1081. After determining that state law should prevail, the court responded by quoting the District Court’s finding that the Utah Supreme Court had held that the rights-of-way “`should not be restricted to the actual beaten path, but should be widened to meet the exigencies of increased travel.’” Id. at 1083 (quoting Whiteside v. Green, 44 P. 1032 (1896)). Furthermore, “`the proposed deviations [from the established roadway] are minor in relation to the realignments which have been made in the past in response to flooding and rock slides.’” Id. at 1084 (brackets in original; citations omitted).

The government argues that Alaska state law in particular does not liberally find R.S. 2477 rights-of-way. It argues that “[n]o Alaska case has held that fixed termini is a sufficient condition of establishing right-of-way under R.S. 2477.” Government petition at 10-11. However, no Alaska case has ever addressed this issue in the way phrased by the government. Instead, the cases have held that fixed termini are essential to a finding of an R.S. 2477 right-of-way. Noting this fact, this Court proceeded to properly observe the extreme conditions in Alaska justified a fixed termini standard.(2)

In Hemerly v. Denton, 359 P.2d 121 (Alaska 1963), the Alaska Supreme Court held:

But before a highway may be created, there must be either some positive act on the part of the appropriate public authorities of the state, clearly manifesting an intention to accept, or there must be public user for such a period of time and under such conditions as to prove that the grant had been accepted.

Id. at 123 (emphasis added). In Hemmerly no highway was found because the facts were not well established. It was not enough to have a mere “dead end road or trail, running into wild, unenclosed and uncultivated country.” 359 P.2d at 125. However, in a later case, Dillingham Commercial Co. v. City of Dillingham, 705 P.2d 410 (Alaska 1985), a highway was found, because rather than a dead-end trail, “the road connects two essential transportation arteries.” Id. at 414. The road was found on facts not any stronger than in the present case.(3) Thus contrary to the government’s assertion, Alaska has not been miserly in recognizing R.S. 2477 rights-of-way.

C. The Contemporaneous Meaning of the Word “Highway” when R.S. 2477 Was Enacted Was Very Broad

When R.S. 2477 was passed, the word highway was very liberally construed in the legal dictionaries of the time. As recently explained in Comments of the Honorable William H. Orton and the Honorable Don Young on the CRS Report on RS 2477 Rights of Way (April 2, 1993) (attached as Appendix B).

For example, the 1867 edition of Burill’s Law Dictionary defined a 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.

The 1879 edition of Abbott’s Dictionary of Terms and Phrases 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 the two uses of the word. Sometimes it signifies the 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 land and preparing and devoting it to the use of travelers.

Brande’s 1867 Dictionary contains this entry:

Highway. In English Law, a highway … 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.

Id. at 4-5 (footnotes omitted).

The list goes on and on. See Appendix B at 3-9. In sum, a multitude of contemporaneous legal dictionaries and legal treatises give the broadest possible interpretation of the word highway, which are entirely consistent with this Court’s decision. Far from adopting “unprecedented, relaxed standards for the establishment of R.S. 2477 rights-of-way” the decision squarely falls within the established legal meaning of the term highway as used in R.S. 2477.

D. There Is No Conflict with Adams v. United States

The government and their amici try to argue that the present case is in conflict with Adams v. United States, 3 F.3d 1254 (9th Cir. 1993). Different fact-based results, however, do not imply different laws. In Adams, this Court noted that “whatever road existed in 1881, the Clark Canyon Road is no longer in the same location as that historical road. The modern road was built in the 1960’s.” Id. at 1258. The most obvious distinction here is that Adams arose in Nevada, a state with different laws regarding highways and with none of the adverse conditions such as permafrost which necessitate changes as in Alaska. More to the point, it is clear from the facts in Adams that the Clark Canyon road was really a brand new road upon which the proponents had tried to tack an R.S. 2477 label based on the existence of an old road. In the present case “[a]ll the evidence points to the existence of a publicly used land route.” Shultz, 10 F.3d 649, 659 (9th Cir. 1993).

In any event, once the R.S. 2477 right-of-way is established, it remains forever. Even if it were not the law in Alaska that the route can change course, at least the original right-of-way would still be available.(4)

Either Shultz has the right to use the road in its present configuration or he has the right to go back and reconstruct the road at its original configuration. Surely the former alternative makes more sense, logically and ecologically.


A property without access is worthless to its owner. During the era when Congress wanted to settle the West, it granted not only the right to homestead but also the inseparable right of access. R.S. 2477 was but one of many, albeit the most liberal, of statutes designed to populate and tame the West. When the era of homesteading and settlement was curtailed in 1976, so too were the liberal access laws like R.S. 2477. But that did not mean that the previously granted rights-of-way were suddenly abrogated. That Congress cannot do without incurring substantial moral and legal liability. Just because the United States would prefer to choke off access to people like Paul Shultz, and just because access might be inconvenient or contrary to the prevailing philosophy of some federal land managers, that does not mean this Court must adopt a crabbed interpretation of the law.

This Court quite properly recognized the unique nature of both the law and the conditions in Alaska. The decision below should be upheld.

DATED: February 24, 1994.

Respectfully submitted,




By _________________________________


Attorneys for Amici Curiae, Pacific Legal Foundation, Resource Development Council for Alaska, and Alaska Miners Association

1. Ahtna Regional Corporation, for example, owns an extensive network of inholdings in Wrangell St. Elias National Park and some within Denali National Park. Access to these inholdings has been a continuing problem ever since the creation or expansion of these parks. See synopsis of the testimony of John Davenport, Land Manager, Ahtna Regional Corporation, before a hearing of the United States Senate, Committee on Energy and Natural Resources, Subcommittee on Public Lands, National Parks and Forests, November 6, 1993, attached as Appendix A to this brief.

2. The government claims at Footnote 7 that harsh conditions were not “unique to Alaska” in 1866. Surely the government jests. While conditions were often difficult in the lower 48, settlers there were not relegated to using dogsleds in the winter and faced with vast reaches of permafrost in the summer. Once permafrost is exposed it tends to melt and turn to mud, often making an alteration of a trail’s location a necessity after only a few years of use. While such problems can be avoided today with modern road-building techniques, they were a unique hazard in Alaska and one fully recognized by its citizens.

3. In that case the route was found on such evidence as: “One old-timer who testified, Milo Adkinson, first came to Dillingham in 1925. He spoke of a trail to the beach that cut across Survey 2541, and testified that “it’s right in the–roughly in the–same spot” now as it was in 1926. If this gives rise to a “roughly in the same spot” standard, the right-of-way in this case more than meets the test.

4. It is not credible that a right-of-way could be abandoned. It makes little sense that in a state like Alaska, where no affirmative action must be taken by the state to confirm an R.S. 2477 right-of-way, there can be abandonment from mere nonaction. Short of an outright quitclaim deed or equivalent, abandonment should not be an issue. Put another way, because the state needs to do nothing to acquire an R.S. 2477 right-of-way, it hardly makes sense that the state could lose the same right-of-way by continuing to do nothing.