THE COMMON MYTHS REFUTED
Opponents of public access to the public lands–primarily environmental activists but also some federal bureaucrats who find RS 2477 rights-of-way “inconvenient”–are actively spreading myths and misinformation about RS 2477. Some of the most common are reproduced here along with the truth.
These myths can be grouped into several categories:
- Myths related to the continuing applicability of RS 2477 or to the continued validity of the rights-of-way grants.
- Myths regarding the definition of terms in RS 2477. (For a brief explanation of every term contained in this one-sentence law, as well as the complete text of the law, see “An RS 2477 Primer”).
- Myths specifically related to wilderness designation.
Myths related to the continuing applicability of RS 2477 or to the continued validity of the rights-of-way grants.
1. MYTH: “The rights-of-way granted under RS 2477 must be claimed by the counties through some formal process.”
In fact, RS 2477 is a self-executing law. That means that when the requirements of the law were met, the grant of the right-of-way was automatically conveyed by the federal government to the county. As Interior regulations issued as far back as 1938 stated: “This grant becomes effective upon the construction or establishing of highways, in accordance with the State laws, over pubic 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). This position of Interior was reiterated as recently as 1988 in a policy statement on RS 2477 issued by then-Interior Secretary Donald Hodel.
2. MYTH: “The federal land management agencies have the power to decide whether a valid grant exists.”
While Interior tried to assert such a right in the draft regulations it issued in 1994 (one of many reasons they were so controversial), it is clear from such statements as the excerpt from Interior regulations issued decades ago (quoted in number 1, above) that there is no precedent for this assertion even from an administrative basis. (Click here for a brief introduction to the issues surrounding the draft Interior regulations.)
More importantly, since the right-of-way is a property right, under the Constitution only the courts can determine whether it is valid. The federal management agency is limited to either recognizing or refusing to recognize a right-of-way asserted under RS 2477. If it recognizes the right of way, it must recognize the rights which came with the grant, such as maintaining the right-of-way and upgrading it for safety and other reasons. A refusal to recognize the grant does not invalidate the right of way.
3. MYTH: “RS 2477, passed in 1866, is somehow outdated and therefore should not be given the same weight in land management decisions as more modern laws.”
This argument is usually born of the desperation of activists and federal bureaucrats who want to limit or eliminate public access to the public lands but who find themselves stymied by the clear statements by Congress, the Courts, and previous Secretaries of Interior recognizing and staunchly upholding these rights. The length of time since a law was passed has absolutely no bearing on its legal status. Laws can only be amended or repealed by formal action by the legislative body or interpreted by court decisions. Barring such action, they remain in force.
To put the illogic and spaciousness of this argument into perspective, the Constitution is even older than RS 2477. Does it have less force because of its age? The Organic Act establishing the National Park Service and setting park goals and policy is approaching a hundred years old. Should it be discounted because of its age? Much of the “common law” used in adjudicating court cases every day goes back centuries in its origin. How long ago a law was adopted is irrelevant to its applicability or validity.
4. MYTH: “Because the Federal Land Policy and Management Act (FLPMA), adopted in 1976, repealed RS 2477, the provisions of this newer law now governs these rights-of-way granted under RS 2477.”
As noted in number 3 above, laws are changed or repealed only through specific, formal actions of the legislature. Far from changing the rights associated with the grants made under RS 2477 or revoking the grants themselves, Congress in passing FLPMA reaffirmed them by stating specifically that these prior grants were in no way affected by its passage.
Consider the following language in FLPMA:
“Nothing in this Act, or in any amendment to this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way (emphasis added) or authorization existing on the date of approval of this Act.” Sec. 701(a).
“All actions by the Secretary concerned under this Act shall be subject to valid existing rights (emphasis added).” Sec. 701(h).
“Nothing (emphasis added) in this title (43 United States Code Sects. 1701-1784, where FLIPMA is found) shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted or permitted.” Sect. 509(a).
The intent of Congress to “grandfather” 2477 rights-of-way could hardly be made clearer!
Myths regarding the definition of terms in the Act. (For a brief explanation of all the terms in the one-sentence 2477 law, as well as the complete text, see “An RS 2477 Primer.”)
5. MYTH: “The term ‘construction’ contained in RS 2477 means formal construction of the entire RS 2477 road and requires extensive, physical modification of the land to be included within this definition. If this did not occur the road cannot qualify as a 2477 road.”
This myth is refuted by the Interior Department’s own policies over the 110 years RS 2477 was in force and reaffirmed as recently as 1989, not to mention by the findings of numerous state and federal courts. A 1988 memorandum issued by then-Interior Secretary Donald Hodel noted that simply “The passage of vehicles over time may equal actual construction” and that “Road maintenance over several years may equal actual construction.”
A 1989 Bureau of Land Management instruction manual defined construction as a “physical act of readying the highway for use by the public according to the available or intended mode of transportation–foot, horse, vehicle, etc. Removing high vegetation, moving large rocks out of the way, or filling low spots, etc., may be sufficient as construction for a particular case. Road maintenance or the passage of vehicles by users over time may equal actual construction.” (BLM Manual Rel. 2-263 Sect. 2801.48.B.1, March 8, 1989).
With such a long history of defining “construction” in the broadest practical terms, it is virtually impossible to disqualify a grant of a 2477 right-of-way claimed by a county on this basis alone.
Nevertheless, environmental activists opposed to public access continue to perpetuate this myth (largely because they wish it were factual) and more recently the Interior Department’s draft regulations issued in 1994 tried to change the long-accepted definition of the term. (A brief introduction to the issues raised by these draft regulations is available on this website.)
The absurdity of the recent effort of the Department and environmental activists to try to twist this definition is illustrated by the fact that they would disqualify as 2477 roads the Oregon Trail, the Santa Fe Trail, the Mormon Trail, and countless others which were the superhighways of the 19th Century West since they were created only by the passage of vehicles. Clearly, that is not what Congress intended in 1866.
6. MYTH: “The term ‘highway’ used in RS 2477 means a substantial, heavily-used road.”
At first glance, this asserted definition seems self-evident. Modern conceptions of the term “highway” would probably include these elements in a definition. However, the term used in RS 2477 is a legal term, indicating the right of public passage.
In the mid-19th Century, when RS 2477 was adopted, the major component of the definition of the term was whether a particular transportation route was open to the public to freely come and go at will. The particular transportation route could even be less than a route that could be traveled by wheeled vehicles and still be considered a highway. The 1989 BLM manual, for example, noted in an appendix, that a “public highway is a definite route or way that is freely open for all to use. It need not necessarily be open to vehicular traffic, for a pedestrian or pack animal trail may qualify.” (Appendix 3 page 2 of BLM manual released March 8, 1989, Rel. 2-263.)
Myths related specifically to wilderness designation.
7. MYTH: “Rural western counties are using RS 2477 to block wilderness designation.”
This myth is most often used in conjunction with proposed wilderness designation on land managed by the BLM. Those who use it, however, either lack even a simple understanding of the basic law governing BLM-managed lands or they are attempting to deceive others who might lack such an understanding. The fundamental law under which BLM lands are managed is the Federal Land Policy and Management Act (commonly referred to as “FLPMA”) which was passed in 1976. Among other things, it repealed RS 2477 (but explicitly protected valid right-of-way grants existing at the time of passage–see the discussion of myth number 4, above) and applied provisions of the Wilderness Act of 1964 to BLM-managed land.
As a consequence, no new right-of-way grants could be made after 1976 under the provisions of RS 2477 but all valid grants made before the passage of FLPMA in 1976 were unaffected. FLPMA also required the BLM to survey the lands it managed to identify areas that might qualify as wilderness under the Wilderness Act and set them aside for further study.
The Wilderness Act of 1964 requires that formally-designated wilderness must be, among other things, “roadless.” Thus, by definition, any tract on which a valid 2477 road right-of-way existed failed the roadless test and must be disqualified from further consideration. Because the status of RS 2477 grants was “frozen” by FLPMA, the counties could do nothing after passage in 1976 to expand the “bundle of rights” they received with the right-of-way grant or otherwise alter its terms. Similarly, the BLM could do nothing to alter the terms or existence of these valid grants.
This simple impact of FLPMA on both 2477 and the BLM wilderness review demonstrates the absurdity of the contention that western counties are somehow using 2477 to thwart wilderness designation. Either a valid road existed at the time of passage in 1976 or it did not. If it did exist, the BLM was required by law to take the presence of the road into account when it inventoried land it managed for wilderness potential. If a valid road did not exist at that date, there is nothing the counties could do after 1976 to create it or otherwise use RS 2477 to affect the wilderness inventory process in any way.
A similar situation applies to RS 2477 rights-of-way across land managed by other federal agencies such as the Forest Service or the Park Service. If the valid 2477 right-of-way existed before the area was designated a national park or national forest, or otherwise “reserved” the validity of those rights-of-way, along with other valid rights, was invariably protected.
8. MYTH: “If the road over an RS 2477 right-of-way has not been maintained for a long period of time, that right-of-way has been abandoned. “
The current state of repair or disrepair of a road over a RS 2477 right-of-way is totally irrelevant to the validity of the property right-of-way which was granted to the county by the federal government. That right-of-way grant was accompanied by a bundle of rights that the federal government is now bound to recognize and respect. Their rights include maintaining the road (and even upgrading it within limits) to improve safety, meet increased demand and use by the public, or meet the goals of its overall transportation plan.
Rural western counties frequently have many hundreds or even thousands of miles of 2477 roads to maintain on very limited budgets, so they must continually prioritize their maintenance efforts. However, lack of maintenance certainly does not constitute abandonment of that right-of-way.
A right-of-way can be abandoned only through formal steps outlined in county and state law.