Revised Statutes 2477 (R.S. 2477) states, in its entirety:
“Sec. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” 8 of the Act of July 26, 1866, 14 Stat. 253, later codified at 43 U.S.C. 932.
This statute has been interpreted innumerable times over the 130 years since its passage by state and federal courts and by the Department of Interior. These interpretations have consistently outlined fundamental, core principles which have guided its application over the years. In particular, the statute has been applied universally by reference to state law. Furthermore, the definitions under state law of terms such as “highway” and “construction ” have always been honored. In recent years, there has been a growing effort to ignore or twist these clear precedents. A major recent example is the regulations proposed several years ago by the Department of Interior. Even a casual review of the precedent outlined here demonstrates conclusively that they do not provide fair treatment of this legal history and the definitions which were relied upon for the 110 years that the offer under RS 2477 was open. The following outline provides just a few quotations from the vast body of administrative and court-made law and the legislative history of this statute.
I. THE ROLE OF STATE LAW:
Early federal regulations stated:
This grant [R.S. 2477] becomes effective upon the construction or establishing of highways, in accordance with the State laws, over public lands not reserved for public uses. No application should be filed under this act, as no action on the part of the Federal Government is necessary. 56 I.D. 533 (May 28, 1938).
These regulations were retained, virtually unchanged, for 110 years:
No application should be filed under R.S. 2477, as no action on the part of the Government is necessary. . . . Grants of rights-of-way referred to in the preceding section become effective upon the construction or establishment of highways, in accordance with the State laws, over public lands, not reserved for public uses. 43 C.F.R. 2822.1-1, 2822.2-1 (October 1, 1974)(See also, 43 C.F.R. 244.54 (1938); 43 C.F.R. 244.58 (1963).
In 1986, the Department recognized its duty to honor prior, valid existing rights:
A right-of-way issued on or before October 21, 1976, pursuant to then-existing statutory authority is covered by the provisions of this part unless administration under this part diminishes or reduces any rights conferred by the grant or the statute under which it was issued, in which event the provisions of the grant or the then-existing statute shall apply. 43 U.S.C. 2801.4 (February 25, 1986).
Supplementary information supplied by the Department stated:
It was not the intent of the proposed rulemaking, nor is it the intent of this final rulemaking, to diminish or reduce the rights conferred by a right-of-way granted prior to October 21, 1976. . . . In addition, if questions should arise regarding the rights of a right-of-way holder under a grant or statute, the earlier editions of the Code of Federal Regulations on rights-of-way will remain available to assist in interpretation of the rights conferred by the grant or earlier statute. . . . In carrying out the Department’s management responsibilities, the authorized officer will be careful to avoid any action that will diminish or reduce the rights conferred under a right-of-way grant issued prior to October 21, 1976. 51 Fed.Reg. 6542 (February 25, 1976).
The Department also recognized the role of state law when making representations to the courts:
The parties are in agreement that the right of way statute is applied by reference to state law to determine when the offer of grant has been accepted by the “construction of highways. Wilkenson v. Dept. of Interior of United States, 634 F.Supp. 1265, 1272 (D. Colo. 1986) (citation omitted).
State courts have also been consistent in their treatment of R.S. 2477 rights-of-way:
Under this act [R.S. 2477] highways could be established over public lands not reserved for public uses while they remained in the ownership of the government. Congress did not specify or limit the methods to be followed in the establishment of such highways. It was necessary, therefore, in order that a road should become a public highway, that it be established in accordance with the laws of the state in which it was located. Ball v. Stephens, 158 P.2d 207, 209 (Cal. Ct. App. 1945).
It has been held by numerous courts that the grant [under R.S. 2477] may be accepted by public use without formal action by public authorities, and that continued use of the road by the public for such length of time and under such circumstances as to clearly indicate an intention on the part of the public to accept the grant is sufficient. Lindsay Land & Livestock v. Churnos, 285 P. 646, 648 (Utah, l930).
By this act [R.S. 2477] the government consented that any of its lands not reserved for a public purpose might be taken and used for public roads. The statute was a standing offer of free rights of way over the public domain, and as soon as it was accepted in an appropriate manner by the agents of the public, or the public itself, a highway was established. Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901).
Federal courts have concurred:
The salient issue is whether the scope of R.S. 2477 rights-of-way is a question of state or federal law. . . . Especially when an agency has followed a notorious, consistent, and long-standing interpretation, it may be presumed that Congress’ silence denotes acquiescence: “[G]overnment is a practical affair, intended for practical men. Both officers, lawmakers, and citizens naturally adjust themselves to any long-continued action of the Executive Department, on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle, but the basis of a wise and quieting rule that, in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself,–even when the validity of the practice is the subject of investigation.” United States v. Midwest Oil Co., 236 U.S. 459, 472-73, 35 S.Ct. 309, 312- 13, 59 L.Ed. 673 (1915).. . . The perfection of an R.S. 2477 right-of-way admittedly is a different issue [from] its scope. However, all of the above-cited cases concern the conflict between an alleged R.S. 2477 right-of-way and a competing claim of right to the land. The cases subsume the question of scope into the question of perfection; and indeed a critical part of many of the state law definitions of perfection included the precise path of the purported roadway. 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. (Citations omitted.)
Ordinarily, this expression of intent [by the state legislature] would constitute valid acceptance of the right-of-way granted in Section 932. That section acts as a present grant which takes effect as soon as it is accepted by the State. . . . All that is needed for acceptance is some “positive act on the part of the appropirate pugblic authorities of the state, clearly manifesting an intention to accept . . . .” Wilderness Society v. Morton, 479 F.2d 842, 882 (D.C. Cir. 1973), (quoting Hamerly v. Denton, Alaska, 359 P.2d 121, 123 (1961); citing also Kirk v. Schultz, 63 Idaho 278, 282, 119 P.2d 266, 268 (1941); Koloen v. Pilot Mound Township, 33 N.D. 529, 539, 157 N.W. 672, 675 (1916); Streeter v. Stalnaker, 61 Neb. 205, 206, 85 N.W. 47, 48 (1901)).
“Under R.S. 2477, a right-of-way could be established by public use under terms provided by state law.” Sierra Club v. Hodel, 675 F.Supp. at 604. “Whether the roads have been established under the provisions of R.S. 2477 is a question of New Mexico law.” U.S. v. Jenks, 804 F.Supp. 232, 235 (D.N.M. 1992). “Whether a right of way has been established is a question of state law.” Shultz v. Department of Army, U.S., 10 F.3d at 655.
II. STATEMENTS OF THE 10TH CIRCUIT COURT OF APPEALS ON THE IMPORTANCE OF STATE LAW
The United States Circuit Court of Appeals for the 10th Circuit, commenting on “more than four decades of agency precedent, subseqent BLM policy as expressed in the BLM Manual, and over a century of state court jurisprudence” on this issue:
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 redemarcation of thousands of R.S. 2477 rights-of-way across the country, and administrative duststorm that would choke BLM’s ability to manage the public lands . . . . That a change to a federal standard would adversely affect existing property relationships squarely refutes Sierra Club’s allegation that the use of a state law standard unfairly prejudices the federal government. R.S. 2477 right holders, on the one hand, and private landowners and 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. The replacement of existing standards with an “actual construction” federal definition would disturb the expectations of all parties to these property relationships. Sierra Club v. Hodel, 848 F.2d at 1082-1083.
FLPMA admittedly embodies a congressional intent to centralize and systematize the management of public lands, a goal which might be advanced by establishing uniform sources and rules of law for rights-of-way in public lands. The policies supporting FLPMA, however, simply are not relevant to R.S. 2477’s construction. 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. Id.
III. CONGRESSIONAL INTENT IN PASSING FLPMA
The debate leading up to the enactment of FLPMA, on a predecessor bill, addressed R.S. 2477 specifically. This bill contained the same terms which were later incorporated into FLPMA, providing that “All actions by the Secretary under this Act shall be subject to valid existing rights” and providing for the repeal of R.S. 2477.
Senator Stevens, of Alaska, expressed concern that rights to “de facto public roads” established across public lands and roads “that through tradition, through usage, through the passage of time, in fact, have become public access roads or highways” would be jeopardized by the repeal of R.S. 2477. 120 Cong. Rec. 22283-22284 (1974). Senator Haskell, of Colorado, speaking in favor of the legislation (S-424), stated: “if a strip of land is being used for a highway over public land in accordance with State law at the time of enactment of this bill, then that grant of right-of-way is preserved by reason of section 502 of the bill.” Id. at 22284.
There can be no question that Congress intended, when it passed FLPMA, that R.S. 2477 rights-of-way be interpreted in accordance with state law. In an attempt to “make sufficient legislative history,” Senator Haskell referred specifically to state case law, stating:
I am referring now if the Senator would like, the citation is Koloen versus Pilot Mound Township, I believe it is, 33 North Dakota 529, it says:
“To constitute acceptance of congressional grant of right-of-way for highways across public lands there must be either user sufficient to establish a highway under the laws of the State, or some positive act proper authorities manifesting intent to accept.”
In other words, a use or some positive act of proper authorities manifesting intent to use. This is the way I would apply this one-sentence statute [R.S. 2477] enacted in 1866: either there is an actual existing public use, or there is a manifest intent which could be put into action by an application to the Department of the Interior, and they would say “yes.” In other words, it is a two-way proposition. Id.
It is also clear that it was an essential condition of the BLM “organic act” that the full rights under R.S. 2477, as well as other rights, were to be preserved. Senator Haskell, in support of the predecessor bill, said “I would like to take this opportunity to reassure the various users of the natural resources lands — and these people include those who graze cattle, it includes people who mine, it includes people who use public lands for recreation — that none of their rights or privileges are being adversely affected.” Id. at 22280.
It is also clear that Congress understood that R.S. 2477 rights-of-way would not be limited to “significant” roads:
MR. STEVENS. Would the Senator from Colorado agree that if a State has accepted an obligation to maintain a road or trail, if it has partially constructed or reconstructed it, or has indicated an exercise of its police authority by virtue of posting signs as to the speed limits, for example, which demonstrate it is a public highway – if the State has taken actions that would normally be taken by a State in furtherance of its normal highway program, and those roads were on such a right-of-way public lands, would the Senator agree that we have no intent of wiping those out, but those would be valid, existing rights under the one-sentence statute the Senator mentioned previously?
MR. HASKELL. I agree with the Senator 100 percent. Id. at 22284.
Furthermore, in response to a concern about “existing roads and trails from village to village” and about “dogsled trails,” Senator Haskell stated:
I am not familiar with dogsled trails, but let me say I agree with the Senator that so long as the intent was for public use, then the right-of-way was established at that time under that 1866 act. Id.
A review of that debate can leave no doubt that Congress intended R.S. 2477 rights to be exercised fully in accordance with state law after the passage of the BLM “organic act.”
IV. FLPMA EXPLICITLY PROTECTS PRIOR VALID EXISTING RIGHTS
The Federal Land Policy Management Act of 1976 (FLPMA) states:
Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this act. FLPMA 701(a), 43 U.S.C. 1701 note (a).
All actions by the Secretary concerned under this Act shall be subject to valid existing rights. FLPMA 701(h), 43 U.S.C. 1701 note (h).
Nothing in this title [43 U.S.C. 1761 et seq.] shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted. FLPMA 509(a), 43 U.S.C. 1769(a).
V. DEFINITIONS OF “HIGHWAY” AND “CONSTRUCTION”
In Colorado, the term ‘highways’ includes footpaths. Simon v. Pettit, 651 P.2d 418, 419 (Colo.Ct.App. 1982), aff’d, 687 P.2d 1299 (Colo.1984). “Highways” under 43 U.S.C. 932 can also be roads “formed by the passage of wagons, etc., over the natural soil.” Central Pacific Railway Co. v. Alameda County, 284 U.S. 463, 467, 52 S.Ct. 225, 226, 76 L.Ed. 402 (1932). The trails and wagon roads over the lands which became part of the Colorado National Monument were sufficient to be “highways” under 43 U.S.C. 932 [R.S. 2477]. 634 F.Supp. at 1272.*
“The term highway is the generic name for all kinds of public ways, whether they be carriage-ways, bridle-ways, footways, bridges, turnpike roads, railroads, canals, ferries, or navigable rivers.” Bouv. Law Dictionary, Rowle’s Third Rev. p. 1438, Tit. Highway; Elliott, Roads and Streets, p. 1; 25 Am.Jur, 340. Parsons v. Wright, 27 S.E.2d 534 (N.C. 1943)
A highway is commonly defined as a passage, road, or street which every citizen has a right to use. . . . A highway includes every public thoroughfare, “whether it be by carriage way, a horse way, a foot way, or a navigable river.” Summerhill v. Shannon, 361 S.W.2d 271 (Ark. 1962).
“Roads” and “highways” are generic terms, embracing all kinds of public ways, such as county and township roads, streets, alleys, township and plank roads, turnpike or gravel roads, tramways, ferries, canals, navigable rivers . . . . Strange v. Board of Com’rs of Grant County, 91 N.E. 42 (Ind. 1910).
Highways, as they were originally developed, were for the convenience and easy passage of persons on foot, on horseback, in vehicles drawn by horses or oxen, and also for the transportation of commodities by the same means. They were open to unrestricted use by all persons. City of Rochester v. Falk, 9 N.Y.S.2d 343 (1939)
The word “highway” as ordinarily used means a way over land open to the use of the general public without unreasonable distinction or discrimination, established in a mode provided by the laws of the state where located. Lovelace v. Hightower, 50 N.M. 50, 168 P.2d 864 (1946).
Travel and transportation of goods by wheeled vehicles is not the only use to which a highway may be put. One walking or riding horseback, or transporting goods by pack horse, over a way which the public is constantly using, is a use of such a way as a highway. Hamp v. Pend Oreille County, 172 P. 869, 870 (Wash. 1918).
“User is the requisite element, and it may be by any who have occasion to travel over public lands, and if the use be by only one, still it suffices.” Wilkenson v. Dept. of Interior, 634 F.Supp. 1265, 1272 (D. Colo. 1986).