NOTE: Ms. Barbara Hjelle is one of the nation’s foremost legal experts on the RS 2477 issue. She serves as the lead attorney on the Burr Trail Road case, the major recent precedent setting a legal challenge to public access, and has been a consultant to numerous policymakers at all levels of government. These questions were posed to her following her testimony before the Senate Committee in April 1966.

QUESTIONS BY SEN. FRANK MURKOWSKI, CHAIR OF THE SENATE ENVIRONMENT AND NATURAL RESOURCES COMMITTEE.

Question: To me this seems like sanctioned harassment by the federal government. Do you find this is a growing problem? And do you have other examples of where the federal government is infringing on right-of-way holders?

Response: There can be no doubt but that the federal government is engaging in sanctioned harassment of right-of-way holders. The Department of Interior’s proposed regulations and the statements of Interior personnel reveal a clear hostility toward R.S. 2477 rights-of-way. Interior wants to revoke these rights-of-way or, at least, require that they be traded for FLPMA title V rights-of-way. FLPMA, however, does not give the Interior the authority to require either of these actions. Rather than respect that law and honor valid R.S. 2477 rights-of-way, the Interior is using its resources and might to effectively revoke these rights-of-way through intimidation. These actions amount to a capricious reversal of long-standing and well-founded administrative policy.

Federal harassment of right-of-way holders would convert the routine task of road maintenance, traditionally and responsibly carried out by state and local governments, to an act of civil disobedience. Now, before a county does anything on one of its valid R.S. 2477 rights-of-way, it must brace itself for the prospect of threats, harassment, and possible litigation by the federal government. On occasion, county commissioners have received telephone calls from Departmental officials threatening them with dire consequences if they maintain their rights-of-way. In all of these cases, the officials assert the new, unfounded interpretation of the law recently created by the Department and offer no disclosure of the large body of law that supports the R.S. 2477 right-of-way.

Despite the fact that most of these roads have existed and been maintained for more years than many of us have been alive, this administration now refuses to allow virtually any activity to proceed on R.S. 2477 rights-of-way without the blessing of the federal government first having been obtained — never mind that the Congress (and the Department) determined long ago that these roads are most properly managed by state and local governments. And this “blessing” is given sparingly and arbitrarily. If a road is located in an area the Department doesn’t much care about, maintenance goes forward without much trouble. However, if the Department wants to stop access to a given area, the scope of the right-of-way is mysteriously reduced. Under current Departmental policies, there is no objective measure of the scope of an R.S. 2477 right-of-way, contrary to what the courts which have directly addressed this issue have said. This situation creates untold opportunities for harassment at the whim of the land managing agency.

And let’s be clear where the harassment is coming from. The local land managers, who are familiar with these rights-of-way and the local elected officials who manage them, do not have significant disagreements about road maintenance activities. But federal land managers in the field are constrained by pressure from the upper ranks of the Department, so their ability to carry out their land management duties applying fundamental common sense is strictly limited.

There have been numerous instances that illustrate this federal harassment. You mentioned the box culvert incident which took place in Garfield County, Utah. That incident provides a good example of the method by which federal agencies harass right-of-way owners. That method involves requiring the counties, by the threat of a lawsuit, to undertake costly actions which are unjustified in relation to normal maintenance activities.

The road in question in the box culvert incident was the Boulder-to-Bullfrog Road (also known as the “Burr Trail” Road), an R.S. 2477 right-of-way in Utah that has been in existence for more than a century and which has been judicially declared to be a valid right-of-way. The box culvert was needed for a wash crossing (“the Gulch”) at a time when the road was realigned to meet safety concerns. After a thorough review of Garfield County’s plans for the Road, the courts ruled that the Road should be moved up onto an adjacent bench as it approached the Gulch. In 1989, the BLM completed an environmental analysis that addressed the new alignment approaching the Gulch. That analysis resulted in a “finding of no significant impact” for the County’s proposed work. Garfield County accepted a modified FLPMA permit for the realignment at the Gulch, which acknowledged that the alignment was part of the County’s prior R.S. 2477 right-of-way.

Then, when Garfield County staked the alignment in accordance with those approved plans, BLM, out of the blue, indicated that the location was unacceptable. BLM requested that the County move the Road northward to a second location. The County complied with BLM’s request and installed the structure at the location specified by BLM. However, while the County attempted to complete its work in accordance with BLM’s demands, BLM personnel continued to interfere, demanding further moves northward of the culvert location, resulting in delay and substantial additional construction costs to the County. The changes demanded in the culvert location also required costly changes in the culvert structure itself as well as changes in the Road location to allow the portions which were completed to join with the alignment across the Gulch. All of the changes made at the Gulch arose from demands made by BLM, none of which were in accordance with BLM’s own environmental analysis. The relocation site ultimately selected by BLM is less safe and less aesthetically compatible with the surrounding lands than was the first site. Thus, BLM’s action lacked any degree of logic, unless we assume that the logic behind that action was simply to harass the County and thereby gain dominance over road decisions. And, after all this, BLM still issued a trespass notice against the County, stating that the County had relocated the Road too far north. This sounds unbelievable, but it is true.

Garfield County has tried to work with the Interior agencies over the past decade to accomplish a road safety project which the courts have already acknowledged to be reasonable and within the scope of the County’s right-of-way. All of its efforts have been met with, at best, a stone wall by agency officials, who refuse to honor the courts’ decisions. Even work within areas already disturbed by past construction and maintenance gives rise to agency harassment. Right now, Garfield County is being threatened with costly litigation for making necessary safety improvements to the Road within Capitol Reef National Park, all within an existing disturbed area. The National Park Service has refused to analyze the alleged impacts of the County’s work, though requested by the County to do so, but cries foul nevertheless when the County, after waiting for years for agency cooperation, exercises its rights.

This harassment and bullying has cost Garfield County vast sums of money and time and has prevented the County from completing the project to this day.

Interior and its subdivisions realize that local governments operate on limited budgets. Anytime Interior wishes to effectively close an R.S. 2477 right-of-way, the agency threatens legal action against the right-of-way holder. The holders, local governments, for the most part, do not have the money to defend their rights against the United States Department of Justice. Local governments cannot afford the legions of lawyers to match those available to the Interior to pursue these actions. Unless Congress acts to protect R.S. 2477 rights-of-way, the Interior will likely succeed in closing these roads or forcing unsafe maintenance practices.

I am sure you are aware of the arguments the opponents of this legislation are putting forward.

Question: Would this legislation allow “new” R.S. 2477 rights-of-way to be created? Or would it allow validity to be determined by state laws that were created after the repeal of R.S. 2477 with the passage of FLPMA?

Response: S. 1425, as I read it, would not allow “new” R.S. 2477 rights-of-way to be created. Neither would this legislation allow validity to be determined by state laws created after the grant was repealed by FLPMA. Arguments to the contrary are intended to alarm those who are uninformed about the law of R.S. 2477, thus serving the Department’s goals of defeating these rights.

Opponents of this legislation repeatedly allege that it would resurrect, revive, or reopen R.S. 2477 and allow new rights-of-way to be established. But a fair reading of the statute reveals that it merely provides a mechanism for determining whether existing rights-of-way were validly established before October 21, 1976, the period the grant was available to the public. In other words, it determines whether “old” rights-of-way are valid. Thus, when opponents of this legislation state that these rights-of-way should not be revived, they really mean that valid rights-of-way should not be honored.

This legislation allows the applicable evidence for each road to be presented and examined. If the evidence shows that a right-of-way was not created prior to the earlier of withdrawal of the public lands or by September 21, 1976, the right-of-way would not be valid. This is what the applicable law requires and what this legislation ensures.

Opponents of this bill state that it would open a “new window” during which claims could be filed. This statement implicitly asserts that right-of-way holders needed to file claims before a deadline expired and that this bill eliminates the effect of missing that deadline. Such an assertion is ludicrous. Federal regulations in place during the time the grant was being offered explicitly stated that no claim or any other type of documentation had to be filed to accept the grant.

Also, opponents’ assertions to the contrary, this legislation would not allow legislation passed after the repeal of R.S. 2477 to determine whether a right-of-way was validly established. While these laws might be of assistance to clarify certain issues, a right-of-way must have been established according to the then-applicable laws.

The real purpose behind opponents’ assertions regarding state law is an unwillingness to have any state law apply at all. Opponents do not truly worry that newly-enacted laws will be used to determine validity. Opponents merely object that this legislation will honor prior existing precedent and, thereby, thwart the Interior’s attempt to enact “new” laws that would eviscerate these rights-of-way.

Just a few of the many authorities relevant to this issue might prove helpful. First, federal regulations state: “Grants of [R.S. 2477] rights-of-way . . . become effective upon the construction or establishment of highways, in accordance with the State laws . . ..” 43 C.F.R. 2822.2-1 (October 1, 1972). Second, courts have ruled: “Having considered the arguments of all parties, we conclude that the weight of federal regulations, state court precedent, and tacit congressional acquiescence compels the use of state law to define the scope of an R.S. 2477 right-of-way.” Sierra Club v. Hodel, 848 F.2d at 1080, 1083 (10th Cir. 1988). “The right of way statute is applied by reference to state law to determine when the offer of grant has been accepted . . ..” Wilkenson v. Dept. of Interior, 634 F. Supp. 1265, 1272 (D. Colo. 1986). (Please note that, in Wilkenson, the Department was in full agreement that state law applied to the validity determination.)

Thus, as this legislation ratifies, R.S. 2477 determinations turn on an interpretation of the law of the state where the right-of-way is located. On the other hand, the Interior’s proposed regulations would now change the rule of construction from state law to brand new federal laws. Coincidentally, the Interior would administratively create those new federal laws in the same regulation. This is a novel strategy, in a country based upon the rule of law, for eviscerating these rights. If the Interior can now change the relevant terms, it can rewrite history and create a situation where a right-of-way, though never previously in question, did not, at the time the highway was established, comply with the newly created federal terms. Therefore, the Interior could deem the grant never to have been accepted.

Here is an example of how the Interior’s logic would work if its regulations were to take effect: let’s say that in 1940 Washington County, Utah, wanted to accept the R.S. 2477 grant to construct a road across federal lands. In consulting government regulations and existing case law on R.S. 2477, the County would find that it could accept the grant according to Utah law. The County would have done so and would have conducted its public business thereafter confident (and correct) that it possessed a valid right-of-way. The County would now be proved wrong by the Interior’s proposed regulations, however. According to those regulations, the County’s entry onto federal lands would be a trespass, because the County failed in 1940 to satisfy federal standards that would be drafted fifty-four years later.

3. There is the concern about the effect this legislation will have on private lands and native lands.

Question: Can you tell us the impact that S. 1425 will have on these lands?

Response: The Act applies only to federally owned lands. Therefore, any discussion of effects on private lands and native lands is largely irrelevant. However, if the Department’s policies are accepted, many private landholders will find their access invalidated. In fact, just the threat of such invalidation is wreaking havoc with private land transactions because some title companies are no longer willing to provide insurance coverage of access which relies on the R.S. 2477 grant.

S. 1425 also will not have the impacts on federal lands asserted by its opponents, who “warn” that recognition of valid rights-of-way will impair federal lands that were dedicated for certain purposes subsequent to the establishment of the rights-of-way. This assertion defies reality. Valid R.S. 2477 rights-of-way must have been established prior to the withdrawal of the public lands. This means that subsequent land withdrawals for purposes such as national parks or wilderness areas would have occurred subject to the previously established and vested rights-of-way.

Despite the alarmist rhetoric of access opponents, continued recognition of these property rights will not lead to environmental calamity. These rights-of-way already exist.

Recognition of their existence will not change the current situation. Furthermore, right-of-way holders are bound in their actions to the extent that statutes governing the protection of cultural sites, wetlands, endangered plants and animals, and other environmental resources apply. Land managing agencies have many legitimate tools to protect federal resource values; they do not need to eliminate vested property rights to achieve legitimate goals.

The holder of an R.S. 2477 right-of-way possesses a property right that is now protected under the rule of law. Likewise, the federal government, as the holder of the underlying estate, possesses protected property rights. Courts and Federal agencies have taken great care to balance these respective rights to ensure (1) that right-of-way holders are allowed to exercise their rights and (2) that underlying federal lands will not be impermissibly impacted. The alarmist rhetoric of those who would like to see these vested rights wiped out is not based upon a realistic assessment of the interplay between the rights of the federal landowner and the rights of the holder of the R.S. 2477 right-of-way.

4. We all know R.S. 2477 was repealed when FLPMA passed in 1976.

Question: Why wouldn’t it be a fair resolution of this matter to merely trade R.S. 2477 rights-of-way for FLPMA rights-of-way?

Response:It would not be fair to require that R.S. 2477 rights-of-way be traded for FLPMA rights-of-way because R.S. 2477 right-of-way have already vested as property rights. It would be contrary to the rule of law upon which this country is founded to demand such a trade. Congress explicitly prohibited such actions in FLPMA. (See 43 U.S.C. 1769.) To demand a trade would be similar to asking the fifth-generation owner of a homestead patent to trade in his deed for a 30-year lease from the federal government.

Furthermore, FLPMA rights are different from R.S. 2477 rights-of-way. Although many differences exist, four primary differences illustrate why these rights-of-way should not be traded.

First, FLPMA rights-of-way are issued according to the discretion of the federal land manager, meaning that FLPMA rights-of-way might or might not be issued. R.S. 2477 rights-of-way, on the other hand, are already vested in the holder, are capable of being utilized immediately, and are subject to constitutional protections.

Second, permissible uses of FLPMA rights-of-way, in some cases, might be more limited than are uses of R.S. 2477 rights-of-way. For example, the scope of R.S. 2477 rights-of-way was generally established according to the uses to which the right-of-way was put. Thus, there is little uncertainty that those established uses will be accommodated if the right-of-way continues to be honored as an R.S. 2477 right-of-way. The scope of a FLPMA right-of-way, on the other hand, will be determined by a federal land manager. That means that there is no guarantee that established uses will be accommodated. Since the federal land management agencies currently oppose most maintenance activities on selected R.S. 2477 roads, it can be assumed that giving those agencies authority over those roads by way of a FLPMA permit will effectively close those roads.

Third, FLPMA permits are more in the nature of a license, not a vested property right. Also, FLPMA permits are not perpetual as are R.S. 2477 rights-of-way. In view of the recent 180-degree reversal of Interior policy regarding rights-of-way, holders need the protection afforded vested, perpetual property rights. Holders would be left in a very vulnerable position were they to be placed within the whims of the Interior’s discretion.

Fourth, FLPMA rights-of-way must be purchased. R.S. 2477 rights-of-way, on the other hand, are already owned.

Question: Do you have any further comments to make or anything you want to add to what the Solicitor said?

Response: Mr. Leshy’s comments provide very little input on S. 1425 itself. Instead, his comments (click here for Mr. Leshy’s prepared comments) address Departmental objections to access rights across federal lands in general. The fact that the Department of Interior now finds these vested property rights to be inconvenient or undesirable is not germane to S. 1425. Congress has decided that these rights-of-way should exist and, through FLPMA, required that they be preserved. That is the law of the land. And, unless changed by Congress, that law must be upheld in resolving the R.S. 2477 issue. The purpose of S. 1425 is to inventory in which instances the R.S. 2477 grant has been accepted. To meet that singular task, S. 1425 creates an even-handed process for effectively determining the validity of R.S. 2477 rights-of-way.

His allegations of potential harm to wildlife, fisheries, park and wilderness values, and the like are unsupported by any realistic assessment of the facts and the law. If these values exist today, they have survived a minimum of 19 years of R.S. 2477 impacts. In all common sense, how much trouble can an existing road or trail cause to a fish, for example? When you look carefully at the Departmental analysis of R.S. 2477, it becomes clear that the Department wants to eliminate these vested property rights as a way of controlling the actions some people might take after they leave the rights-of-way and enter the adjacent federal lands. The Department should carry out its land management responsibilities by directly managing inappropriate activities which take place on federal lands, not by taking away the entire public’s right to travel freely across the West.

Mr. Leshy expressed a willingness to resolve the “controversy” surrounding R.S. 2477 access rights. Since this “controversy” exists solely because of the Interior’s opposition to the continued existence of R.S. 2477 access rights, I would hope that Mr. Leshy is endorsing a reversal of recent Interior policies and a commitment to honor these vested property rights. But that is clearly not the case. Nevertheless, if the Department which Mr. Leshy represents were to agree to abide by established precedent, the controversy he asserts would be largely resolved. It is not without irony that, as far as Mr. Leshy is concerned, the most controversial aspect of S. 1425 is its insistence that this precedent be honored.

The controversy created by the new positions asserted by Mr. Leshy burdens local governments with significant, unnecessary costs; it casts uncertainty on rural property values; it imperils the safety of human beings by stifling local governments’ ability to adequately maintain and improve roads. In short, the controversy jeopardizes everything that depends upon a stable and reliable transportation infrastructure. In large stretches of the West, small communities are surrounded entirely by federal lands. In Utah, for example, about 70% of all the land in the state is owned by the federal government. That scenario is similar in many other western states. Thus, access across those federal lands is crucial to the well-being of entire communities and, in a larger sense, the West itself. The Department treats this problem as if it impacts Utah and Alaska alone. But if it is successful in enforcing its interpretation of R.S. 2477, many roads in the Western states would be in trespass.

Mr. Leshy’s assertion that S. 1425 “liberalizes” R.S. 2477 is consistent with the Department’s refusal to recognize innumerable court decisions as valid. State law cannot contradict R.S. 2477 because it has been universally recognized that, as a matter of federal law, state law has been adopted as the rule of interpretation. Mr. Leshy may be right that this bill does not discriminate. Under his proposal, the Department could override a clear Congressional mandate not to discriminate between one state and another, but rather to honor all states which have relied on Congress’ grant of the R.S. 2477 right-of-way in accordance with state law. Mr. Leshy now proposes to discriminate against the state of Utah, for example. Although, if the truth were known, all public lands states would feel the impacts of being turned into trespassers if the Department’s proposed regulations were implemented.

Mr. Leshy argues that these rights-of-way need not be honored because eradicated R.S. 2477 rights-of-way can be replaced by FLPMA Title V rights-of-way. Such an argument grossly minimizes the importance of vested property rights to our system of government. The relative merits of FLPMA Title V do not present grounds to dishonor or divest existing R.S. 2477 rights-of-way. Mr. Leshy’s statement that about 12,000 Title V permits have been issued since FLPMA was enacted has absolutely nothing to do with a fair determination of whether the grant of R.S. 2477 was accepted in a particular case sometime between 1866 and 1976.

Mr. Leshy’s comments make it abundantly clear that the Department of Interior is not a dispassionate, neutral arbiter when dealing with R.S. 2477 rights-of-way. For that reason, it is particularly salutary that S. 1425 allows the judiciary to determine the validity of any right-of-way opposed by the relevant federal agency. Clearly, the judiciary will honor only those rights-of-way that were created during the period that R.S. 2477 was in effect, while the Department, if left to its own devices, would systematically invalidate these same rights.

Mr. Leshy also objects that S. 1425 imposes the burden of proof in judicial actions on the United States. Mr. Leshy’s complaints about the burden of proof are ironic when you consider that the Department’s proposed regulations would place a significantly greater burden on local governments whose resources cannot possibly meet this demand. Under the Department’s own regulations, holders were never required to document or file any record regarding the establishment of these rights-of-way. To now require that such documentation be presented in order to preserve these vested rights flies in the face of basic constitutional protections of property. If the United States now desires to inventory where and how many R.S. 2477 rights-of-way exist, it is appropriate that the United States should shoulder the consequences of its earlier decision not to require documentation. Furthermore, the federal agencies, not local governments, have traditionally prepared maps and descriptions of existing conditions on the federal lands.

Another warning in Mr. Leshy’s comments concerns the threat that S. 1425 would allow trails and paths to be upgraded to paved highways. That concern is likewise baseless. R.S. 2477 precedent establishes that the scope of a right-of-way was determined during the time the grant was available. Mr. Leshy’s interpretation of the 1993 Utah law is unsupported by the language of the legislation itself. The state and local governments which have been managing these rights-of-way for decades have not undertaken the wholesale construction that Mr. Leshy fears and, as a practical, financial matter as well as a legal matter, such actions will not take place. However, if Mr. Leshy’s principles were adopted, the traveling public which relies on these rights-of-way would not be able to travel safely, because no improvements necessary for that purpose would be allowed under the right-of-way grant. Clearly, when Congress granted these highway rights-of-way, it intended that they be kept safe, as state law would allow.

Mr. Leshy’s assertion that honoring state law would somehow harm private property holders defies reason. First, if the R.S. 2477 right-of-way was perfected prior to transfer of land from the federal domain into private hands, the private landowner has always been subject to the right-of-way. But, perhaps even more significantly, since state law clearly governs the establishment and management of public highways across private lands, the creation of a new federal standard, as proposed by Mr. Leshy, would create untold problems and inconsistencies as between private lands and adjacent public lands. Private landowners in most states would find themselves without legal access to their lands, when their access crosses federal lands. Recently, in both Utah and Colorado, we have seen private lands held hostage to the Department’s proposed policies because title companies were no longer willing to insure access, recognizing that the new federal standard could invalidate long standing access routes.

If we rely on the uncontradicted precedent of R.S. 2477, there is truly no controversy regarding which laws should apply to validity determinations. Prior to Interior’s recently-proposed regulation, every court and every federal regulation to address the issue has stated that the proper rule of construction for R.S. 2477 is the law of the state where the right-of-way is located. Thus, it should be quite clear that state law has been adopted as the rule of construction for R.S. 2477. (Even the 1898 decision by Secretary Bliss, the case which Departmental officials cling to as a contradiction to the flood of established precedent, did not address or negate the fundamental principle that state law applies to determine validity of R.S. 2477 rights-of-way.)

S. 1425 resolves the existing R.S. 2477 controversy finally and fairly. It is unfortunate that Interior would recommend that the bill, if passed by Congress, be vetoed. This controversy needs to be resolved by honoring existing rights-of-way in accordance with existing law, for the good of rural communities, the West and the nation as a whole.