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 simple statute has sparked controversy in recent years, arising primarily from efforts to limit or restrict the scope of the rights it granted and to establish federal control over actions taken by local governments exercising the rights vested under R.S. 2477. Most recently, the Department of Interior (the “Department”) has published draft regulations purporting to provide a basis for the administrative treatment of R.S. 2477 rights-of-way. 59 Fed.Reg. 39216 et seq. (August 1, 1994). In reality, these regulations would result in a substantial administrative reversal of court-made law and policies long ago acquiesced in by Congress, moving a giant step toward evisceration of historical rights of access to and across federal public lands.
While few federal cases have directly interpreted R.S. 2477 a consistent body of federal law has developed in the cases which have addressed this statute. (1) In addition, R.S. 2477 was interpreted through federal regulations commencing in the 1930s, through decisions of the Interior Board of Land Appeals, and through policy statements of the Department found, for example, in the Bureau of Land Management (BLM) Manual.
The existing body of case law and agency policy has established fundamental principles applicable under R.S. 2477: The grant was self-executing, giving rise to vested property rights when its terms were met prior to October 21, 1976. The federal grant incorporated state law by reference for its interpretation. In Utah, once accepted by public use or governmental action, the grant included the right to provide safe travel for the public. These property rights cannot now be eviscerated by the federal government.
Utah has provided the basis for an extensive analysis of R.S. 2477 in the “Burr Trail” cases: Sierra Club v. Hodel, 675 F.Supp. 594 (D. Utah 1987); 848 F.2d 1068 (10th Cir. 1988); 737 F.Supp. 629 (D. Utah 1990); Sierra Club v. Lujan, 949 F.2d 362 (10th Cir. 1991). These cases address the efforts by Sierra Club and others to establish precedent strictly limiting or eliminating the scope of this R.S. 2477 right-of-way which had been used by the public for nearly a century (disregarding prior use by Native Americans) and maintained by Garfield County for decades. Garfield County proposed to bring this well-established dirt and gravel road up to current safety standards. Ultimately, the courts agreed that the County had the right to do so. However, in spite of those rulings, the opposition to the County’s exercise of its rights continues, now in the form of agency action by the Department.
The continued and growing hostility to the exercise of these long-held rights, if unchecked, is likely to lead to the loss of these rights of access to and across federal public lands which dominate the landscapes of rural counties in the West. Whether ambulances, search and rescue teams, law enforcement, and other service personnel, recreational users, as well as average citizens going from town to town desiring access to the federal public lands, can continue to travel freely in these rural counties would be decided by federal employees, often situated in offices far removed from the areas where the impacts of their decisions would be felt.
This article will cover the policy and case law that has developed regarding R.S. 2477 and will also address the draft regulations, by focusing on ten essential features of R.S. 2477, as they have been viewed historically and as the Department now attempts to view them.
UNDER R.S. 2477 CONGRESS OFFERED A SELF-EXECUTING GRANT OF RIGHTS-OF-WAY.
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).
The federal regulations contained essentially the same language until after R.S. 2477 was repealed on October 21, 1976, by the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701 et seq. See, e.g., 43 C.F.R. 2822.1-1, 2822.2-1 (October 1, 1972).
State and local governments were authorized to accept R.S. 2477 rights-of-way without any additional regulatory action or approval by the federal government. State and local actions could cumulate additional rights up to the time of the repeal of R.S. 2477. “R.S. 2477 was an open-ended and self-executing grant. . . . Because the grantor, the federal government, was never required to ratify a use on an R.S. 2477 right-of-way, each new use of the [right-of-way] automatically vested as an incident of the easement.” 848 F.2d at 1084. See also, Shultz v. Dept. of Army, 10 F.3d 649, (9th Cir. 1993) (“the grant is ‘self-executing.’”)
Those accepting the grants often took no formal action because the terms of the grant were explicit in requiring no application to or action by the federal government for its perfection.
The currently-proposed regulations would superimpose new requirements beyond the requirements in place during the offer of the grant. They would impose extensive documentation of historical actions which may have taken place decades ago. See, 59 Fed. Reg. 39226 (Proposed 43 C.F.R. 39.6). Since the terms of the grant explicitly required no record-keeping, many actions taken to satisfy the terms of the grant have not been documented. As a result, the proposed regulations would result in a refusal to recognize perfected rights that have been used without interruption by the public for many years.
PERFECTED R.S. 2477 RIGHTS VESTED AS PROPERTY RIGHTS.
R.S. 2477 rights-of-way are clearly property rights. “The ‘scope’ of a right-of-way refers to the bundle of property rights possessed by the holder of the right-of-way. This bundle is defined by the physical boundaries of the right-of-way as well as the uses to which it has been put.” Id. at 1079, n. 9.
The U.S. Court of Appeals for the 10th Circuit has relied upon the common law of dominant and servient estates in its analysis of these rights. “Rights-of-way are a species of easements and are subject to the principles that govern the scope of easements.” Id. at 1083, citing J. Cribbett, Principles of the Law of Property at 273-74 (1962).
As property rights, R.S. 2477 rights-of-way are entitled to the traditional protection afforded such rights. They cannot be taken without just compensation or other appropriate remedy necessitated by the grant of easement from Congress directly to the states and their political subdivisions, acting on behalf of the public. See, e.g., Block v. North Dakota, 461 U.S. 273, 291 (1983).
The proposed regulations appear to recognize the nature of these rights, defining a claim as “asserting the existence of and a property interest in a right-of-way” and requiring that a “claimant” under the rule be a “person or governmental entity that asserts the existence of and a property interest in a right-of-way . . . .” 59 Fed.Reg. 39225 (Proposed 43 C.F.R. 39.3(c) and (d)). However, the Department clearly desires to emphasize “the limited interests that were granted and acquired under R.S. 2477.” Id. at 39221.
STATE LAW PROVIDES THE BASIS FOR THE DETERMINATION OF THE EXISTENCE AND SCOPE OF R.S. 2477 RIGHTS-OF-WAY.
Both perfection (establishment) as a highway and the scope of an R.S. 2477 right-of-way is governed by the law of the state where the right-of-way is located. (2)
“Under R.S. 2477, a right-of-way could be established by public use under terms provided by state law.” 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.” 10 F.3d at. The federal cases consistently rely upon state law to support their analyses of the existence and scope of R.S. 2477 right-of-way.
Likewise, the federal regulations governing R.S. 2477 clearly have incorporated state law as the basis for perfecting the right-of-way since at least 1938. 56 I.D. 533, 551 (May 23, 1938). In addition to its regulatory pronouncements, 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 the grant has been accepted by the “construction of highways.”
Wilkenson v. Dept. of Interior of the United States, 634 F.Supp. 1265, 1272 (D. Colo. 1986) (citation omitted). (3)
One of the central questions in Sierra Club v. Hodel concerned the application of state law to determine the scope of the right-of-way, once perfected. “The salient issue is whether the scope of R.S. 2477 rights-of-way is a question of state or federal law.” 848 F.2d at 1080.
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. Id. at 1083. (Citations omitted.)
The incorporation of state law as the basis for interpreting the existence and scope of R.S. 2477 rights-of-way is based, in great part, upon the conclusion that Congress intended reliance on state 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). 848 F.2d at 1080.
State courts dealing with R.S. 2477 rights-of-way are consistent in applying state law to determine the existence and scope of R.S. 2477 rights-of-way. The California Court of Appeals provided a clear statement of the basis for this standard:
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).
The Utah supreme court has applied Utah’s public user statutes to support the establishment of an R.S. 2477 highway:
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 a free right 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).
The proposed regulations reject the application of state law, except where it would be more restrictive than the new policies and definitions the Department now proposes. See, e.g., 59 Fed.Reg. 39225 (Proposed 43 C.F.R. 39.3(d), (e), (f), (o).
ALL VALID EXISTING R.S. 2477 RIGHTS-OF-WAY WERE PERFECTED NO LATER THAN THE REPEAL OF R.S. 2477 IN 1976.
R.S. 2477 was repealed by the Federal Land Policy Management Act (FLPMA), 43 U.S.C. 1701 et seq., in 1976. Any R.S. 2477 right-of-way must have been perfected prior to the repeal of R.S. 2477. This means that only rights-of-way that have been in existence for over seventeen years can be valid R.S. 2477 rights-of-way today. Most R.S. 2477 rights-of-way have been in existence much longer.
For example, the use of the Burr Trail road commenced in the late 1800s; Garfield County commenced road maintenance in the 1940s. Testimony at trial in Sierra Club v. Hodel regarding the construction of the Burr Trial road reflected strenuous efforts under rigorous frontier conditions to construct and maintain the road over a period of decades. Yet, today, the County’s right to maintain this road in a safe condition in accordance with the holdings of the courts is still under attack.
If a right-of-way was not perfected prior to 1976, “[a]ny new rights-of-way must be obtained under the stricter provisions of FLPMA Subchapter V, codified at 43 U.S.C. 1761-1771.” 848 F.2d at 1078. The permits which may be issued under title V of FLPMA do not vest as perpetual property rights. The limitations on the rights of the federal government to “eviscerate” the property right granted under R.S. 2477 do not apply to “Title V” rights-of-way. See, 848 F.2d at 1087.
Moreover, while R.S. 2477 rights-of-way predate FLPMA, thus limiting the application of FLPMA, Title V rights-of-way are creatures of FLPMA and thus controlled by its terms. Id. As a result, the question of whether an R.S. 2477 right-of-way has been perfected has significant implications regarding the rights and liabilities of the federal government and the entity claiming the right-of-way. For example, the Department has no authority to issue a permit for improvements that might intrude one inch into a wilderness study area established under FLPMA, no matter how necessary for safety for legitimate and long-standing uses of an R.S. 2477 right-of-way. In the absence of the R.S. 2477 grant, as interpreted in Hodel, counties would be forced to cease the maintenance and improvement practices that they have routinely conducted in the past.
In order to perfect an R.S. 2477 right-of-way, the requirements of R.S. 2477 must have been met. There is disagreement regarding the essential elements for perfection. Until recently, the BLM would acknowledge the existence of an R.S. 2477 right-of-way if three conditions had been met before the repeal of R.S. 2477. “[T]he lands involved must have been public lands, not reserved for public uses . . . at the time of acceptance; some form of construction must have occurred; and the highway so constructed must be considered a public highway.” BLM Manual, Rel. 2-263 (March 8, 1989).
The BLM has defined the reference to “public lands, not reserved for public uses” to mean those lands that were “open to the operation of the various public land laws enacted by Congress.” Id. While the BLM asserted that some lands may have been “reserved or dedicated by an Act of Congress, Executive Order, Secretarial Order, or, in some cases, classification actions authorized by statute,” it also acknowledged that certain general withdrawals did not create reservations for public use under R.S. 2477. The proposed regulations contain a more elaborate treatment of the terms “Public Lands Not Reserved for Public Uses” or “Unreserved Public Lands.” 59 Fed.Reg. at 39225 (Proposed 43 C.F.R. 39.3(l)). Since the intent of Congress was to grant these rights-of-way to facilitate settlement of the West, the logical interpretation is that R.S. 2477 was intended to apply wherever location and entry were authorized under the general public land laws. The question of Congressional intent in placing these words into R.S. 2477 will undoubtedly have to be resolved by the courts.
Whether construction must have occurred and what constitutes a public highway have traditionally been deemed questions of state law.
In rejecting the argument that “actual” construction “beyond mere use” was required to perfect an R.S. 2477 right-of-way, the Wilkenson court stated:
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 Wilkenson court explicitly recognized that “mere use” is sufficient to constitute “construction” under the terms of R.S. 2477. Id.
The standards articulated by the courts were reflected in the BLM Manual (Rel. 2-263, March 3, 1989), which defined construction as follows:
[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 2801.41B1b.
This treatment of construction is consistent with the body of case law which has provided the basis for perfection and interpretation of R.S. 2477 rights-of-way for decades.
Likewise, the federal courts have recognized that the term “highway” as used in R.S. 2477, is determined by the right of access, not by the level of development of the route used. Thus, the Wilkenson court outlined the contending views of the parties:
The plaintiffs [a local resident and Mesa County] contend that right of way means access to the land for the purpose of traversing it, and the defendants’ [Department of Interior] view is that a right of way for a public highway must be limited to a constructed roadway over a reasonably definite and specific route. 634 F.Supp. 1272.
The court refused to accept the contention of the Department that, in order to perfect a highway right-of-way under R.S. 2477, the county must have constructed a substantial roadway. This decision is consistent with innumerable state court decisions interpreting R.S. 2477, some of which have been cited in this article.
During the 110 years of the offer made by Congress under R.S. 2477, the term “highway” was defined solely by its central feature, that it be a route open to the public to come and go at will. See, e.g., 39 Am.Jur.2d 1 (1968); Parsons v. Wright, 27 S.E.2d 534 (1943); Summerhill v. Shannon, 361 S.W.2d 271 (1962); Strange v. Board of Com’rs of Grant County, 91 N.E. 42 (1910); City of Rochester v. Falk, 9 N.Y.S.2d 343 (1939); U.S. v. Oklahoma Gas and Elec. Co., 37 F.Supp. 347 (D.C. Okla. 1941). The 1988 Departmental Policy Statement on R.S. 2477 honored the established legal definition of this term, stating 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.” BLM Manual Rel. 2-263, Appendix 3, Page 3. (4)
The Department is now attempting to substitute a different standard from that which was applied throughout the 110 years when R.S. 2477 rights-of-way were being perfected. It proposes to define “construction” and “highway” as follows:
Construction means an intentional physical act or series of intentional physical acts that were intended to, and that accomplished, preparation of a durable, observable, physical modification of land for use by highway traffic. . . . Highway means a thoroughfare that is currently and was, prior to the latest available date used by the public, without discrimination against any individual or group, for the passage of vehicles carrying people or goods from place to place. 59 Fed.Reg. at 39225 (Proposed 43 C.F.R. 39.3(e) and (f)).
These definitions, considered together, limit the rights-of-way the Department will recognize to only roads developed for certain vehicular use, regardless of the length of time, the purpose of use, points of access, or other aspects of public travel properly cognizable under prior existing law.
IN UTAH, THE RIGHT-OF-WAY COULD BE PERFECTED BY GOVERNMENTAL ACTION OR PUBLIC USE.
Since R.S. 2477 was a grant for a public highway, action by a state or local government showing intent to accept the grant across unreserved public lands has been deemed acceptance of the grant. BLM policy has provided that the R.S. 2477 “grant became fixed when a highway was constructed and accepted as a public highway.” BLM Manual 2801 dated June 30, 1986. See also, BLM Manual 2801 dated March 8, 1989 (“Acceptance of the grant occurred when a public highway was constructed on unreserved public lands”).
The federal courts have recognized that R.S. 2477 could be accepted by governmental action showing intent to accept the grant:
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)).
Public use also forms a basis for acceptance of the grant in Utah, as well as several other public lands states.(5) Utah statutory law provides that “[a] highway shall be deemed to have been dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years.” Utah Code Ann. 27-12-89 (1953). Similar provisions have been in effect since before the turn of the century. See e.g., Chapter 29, Laws of Utah 1880 2-3; Chapter 12, Laws of Utah 1886, 2. To meet the continuity requirement, it is not necessary that use be daily or weekly, but there must be “use by the public whenever it was necessary or convenient” for the requisite period of user. Blonquist v. Blonquist, 516 P.2d 343, 344 (1973).
There is also no limitation on the nature of use necessary to perfect a highway right-of-way under R.S. 2477. A road need not be heavily traveled to constitute a highway. “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).
“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)
Id. A footpath, livestock trail, or a four-wheel-drive road can be an R.S. 2477 right-of-way, so long as the public used it whenever necessary or is convenient for the requisite time period or maintenance by a governmental entity can be shown. See, e.g., Boyer v. Clark, 326 P.2d 107, 109 (1958).
The proposed federal regulations, by their focus on construction for “the passage of vehicles” are clearly intended to defeat public access rights for footpaths, horse trails, and the like, contrary to the opinions of the federal courts which have dealt with these issues. 59 Fed.Reg. at 39225, 39226 (Proposed 43 C.F.R. 39.3(f), (k) and 39.6(c)(9)(II). They also are intended to defeat rights acquired by public use alone. Id.
The existence of perfected public access right under R.S. 2477 leads next to the question of the scope of the right which has been accepted. While the existence of public access trails, horse paths, four-wheel-drive roads, and roads appropriate for passengers and other vehicles may be controversial, the question of whether, and to what extent, these valid existing rights can be maintained or improved constitutes a central issue in the new challenges to R.S. 2477.
IN UTAH, THE SCOPE IS DEFINED BY WHAT IS REASONABLE AND NECESSARY TO PROVIDE SAFE TRAVEL FOR LEGITIMATE USES.
Applying Utah law to the question of what came with the bundle of rights granted by R.S. 2477, the courts have applied a “reasonable and necessary” standard. An R.S. 2477 right-of-way includes the right to make reasonable and necessary improvements to ensure safe travel for uses that were made of the right-of-way while the grant was being perfected.
“Because the grantor, the federal government, was never required to ratify a use on an R.S. 2477 right-of-way, each new use of the Burr Trail automatically vested as an incident of the easement. Thus, all uses before October 21, 1976, not terminated or surrendered, are part of an R.S. 2477 right-of-way.” 848 F.2d at 1084. Regarding the Burr Trail, the court specifically held:
The right to make reasonable and necessary improvements within the boundaries of the right-of-way is part of the County’s valid existing rights on the Burr Trail. Id. at 1086.
In the Burr Trail case, the courts recognized that the standards applied under state law determine what is reasonable and necessary for safety for the accepted uses. In Utah, the standards set by the American Association of State Highway and Transportation Officials (AASHTO) govern the determination of the horizontal and vertical alignments necessary to provide safety for various traffic regimens. See, 675 F.Supp. at 607. The BLM, in its environmental review of the Burr Trail road, also acknowledged the application of the AASHTO standards to determine the scope of the right-of-way. “The American Association of State Highway and Transportation Officials (AASHTO) standards for rural road construction were reviewed. It is appropriate to note that both the BLM and the County rely on these same standards for guidance in road construction.” Boulder to Bullfrog Road Improvement Project (Burr Trail) Final Environmental Assessment (EA), March 7, 1989, EA # UT-040-89-6, p. 5.
The application of the AASHTO standards not only is consistent with Utah law but also provides a benchmark for determining the scope of an R.S. 2477 right-of-way. The AASHTO standards provide some flexibility in their application so that discretionary judgments can be made in favor of the protection of resource values on the servient estate. However, the standards also provide a source for the determination of the proper scope of the right-of-way and thus replace an arbitrary decision-making process.
The AASHTO standards provide a range of alternatives depending on the nature of the uses of the right-of-way and the daily traffic on the right-of-way. In those circumstances where AASHTO standards do not apply — for example for horse trails or footpaths — safety considerations should nevertheless provide the guidance to determine the scope of maintenance activities granted by R.S. 2477. These questions have not been raised or resolved in the courts. They cannot be resolved by a regulatory process carried out with a clear intent to limit or defeat these rights.
The treatment of R.S. 2477 rights-of-way offered by the Department’s proposed regulations would preclude maintenance for safety purposes within the scope of the grant. During the extended time period which the Department would necessarily take to review the volumes of materials it proposes to have filed with each claim, only “routine maintenance,” subject to prior approval, could be performed. 59 Fed.Reg. at 39228 (Proposed 43 C.F.R. 39.10). These activities would be limited to maintenance activities that are within the “width, surface treatment, and location actually in use for public highway purposes” on the last date the right-of-way could have been perfected. 59 Fed.Reg. at 39225 (Proposed 43 C.F.R. 39.3(n) and (o)). The Department may attempt to further regulate the maintenance and improvement of these rights-of-way. 59 Fed.Reg. 39216 (August 1, 1994).
R.S. 2477 RIGHTS-OF-WAY ARE PROTECTED BY FLPMA.
FLPMA explicitly protects prior valid existing rights and makes the actions of the Department after its passage subject to those rights.
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).
The proposed regulations would, in many cases, force R.S. 2477 right-of-way holders to obtain new rights-of-way through FLPMA rather than exercise valid existing rights perfected under R.S. 2477. The Department’s intentions here are clear:
Some claimants may find the existing procedures under the Title V of FLPMA, or other statutory authorities, to be a more familiar and speedy process for resolving their right-of-way claims. 59 Fed.Reg. at 39222 (Proposed 43 C.F.R. 39.7).
These proposals are in conflict with the explicit provisions of FLPMA. FLPMA authorizes the exchange of an R.S. 2477 right-of-way for a FLPMA right-of-way, but does not permit the Department to force such an exchange:
. . . with the consent of the holder thereof, the Secretary concerned may cancel such a right-of-way or right-of-use and in its stead issue a right-of-way pursuant to the provisions of this title. FLPMA 509(a), 43 U.S.C. 1769(a). This provision makes it clear that the holder cannot be forced to give up its R.S. 2477 right-of-way.
FEDERAL REGULATORY AUTHORITY OVER R.S. 2477 IS LIMITED BY THE OBLIGATION TO HONOR THE VESTED PROPERTY RIGHT.
The Department asserts its power to regulate R.S. 2477 under 43 U.S.C. 1201 and 1457; 43 U.S.C. 1732(b), 1740 and 1782(c); 16 U.S.C. 668dd and 460k-3; the Alaska National Interest Lands Conservation Act, Section 304(b), Pub. L. 96-487, 94 Stat. 2371, 2395 (1980); and 16 U.S.C. 1-4. 59 Fed.Reg. at 39223-4. Since FLPMA explicitly honors valid existing rights, it is clear that the regulatory authority of the BLM is limited by those rights. However, the same limitations would apply to other administrative agencies when dealing with vested R.S. 2477 rights-of-way. Often the statute creating a national park or monument explicitly honors valid existing rights. See, e.g., An Act to establish the Capitol Reef National Park in the State of Utah, (85 Stat. 639).
In Sierra Club v. Hodel, the court was explicit about the limitations on federal authority. “BLM’s authority is limited to what is relevant to its duty to prevent unnecessary degradation of the [Wilderness Study Areas].” 848 F.2d at 1096. (6) The court also made it clear that there are limitations on the authority of the BLM to interfere with the exercise of valid existing rights:
When dealing with defining boundaries of public lands or existing rights-of-way, BLM has no power to designate alternatives or deny nonfederal actors a course of action. The same is true as to improvements on R.S. 2477 rights-of-way that do not affect WSAs or implicate other federal duties containing some measure of discretion. But as to improvement on rights-of-way affecting WSAs, while BLM may not deny improvements because they impair WSAs, it retains a duty to see that they do not unduly degrade. 848 F.2d at 1090.
The right of access cannot be taken under the guise of regulation:
Although the district court ordered the County to apply to BLM for a permit to move the road, we do not construe that order to mean that BLM may deny the permit or impose conditions it might on ordinary right-of-way requests under FLPMA which would keep the County from improving the road. 848 F.2d at 1088.
Whatever the scope of regulatory power, it does not extend to the power to take rights that have vested with the public pursuant to a direct grant from Congress. 804 F.Supp. at 237. The Department’s proposed regulations would undoubtedly result in its refusal to acknowledge valid existing rights; such a refusal would be invalid because it is outside the scope of the Department’s regulatory power.
Although the regulations assert the laudable intention to “provide claimants with a reasonable method of obtaining an administrative determination of their claims without undertaking the expense and time of litigation,” 59 Fed. Reg. at 39222, the refusal of the Department to adhere to long-established policies and precedent and the concomitant narrowing of definitions to defeat long-standing rights will surely have the opposite effect.
THE PROVISIONS OF NEPA APPLY IN A LIMITED WAY TO SOME R.S. 2477 IMPROVEMENT PROJECTS.
Because the federal government has the authority to prevent unnecessary or undue degradation of Wilderness Study Areas, the application of that authority triggers the application of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq.
While this obligation [to prevent unnecessary or undue degradation to WSAs] is limited by BLM’s inability to deny the improvement altogether, it is sufficient, we hold, to invoke NEPA requirements. 848 F.2d at 1090-1091.
With regard to Wilderness Study Areas, the Department of Interior has defined “unnecessary or undue degradation” as “Impacts greater than those that would normally be expected from an activity being accomplished in compliance with current standards and regulations and based on sound practices, including use of the best reasonably available technology.” Interim Management Policy and Guidelines for Land Under Wilderness Review, 44 Fed. Reg. 72,014 (1979), 48 Fed. Reg. 31,854 (1983).
Sierra Club v. Hodel tells us that BLM’s NEPA analysis, insofar as it may impact actions by the holder of an R.S. 2477 right-of-way, must focus on whether any unnecessary or undue impacts would occur, i.e. on whether the project, as planned, would fail to use the best reasonably available technology under the circumstances. Although the issue has not yet been litigated, a similar principle should apply in the exercise of regulatory power by other administrative agencies. The proposed regulations do not address this issue in any detail.
ESTABLISHED APPROACHES TO DEALING WITH R.S. 2477 RIGHTS-OF-WAY SHOULD NOT BE CHANGED.
The Department’s proposed regulations would significantly alter the treatment given to R.S. 2477 rights-of-way. Since these rights-of-way have not been documented in states like Utah, documentation clarifying the existence and location of perfected R.S. 2477 rights-of-way may be beneficial to the land management agencies. However, to the extent the regulations attempt to undo decades of treatment of R.S. 2477 rights-of-way under state law, they will do more harm than good. Those who oppose recognition of R.S. 2477 rights-of-way assert that claims of thousands of rights-of-way in Utah show excessive demands on the part of local governments. These assertions ignore the fact that only rights-of-way that have been relied upon prior to October 21, 1976, can be claimed. They also ignore the fact that these rights-of-way provide access across vast areas of public lands and were established over a period of 110 years to support the innumerable activities inherent in the conduct of everyday life throughout the state.
In response to the arguments of the plaintiffs in Sierra Club v. Hodel, the 10th Circuit Court gave significant attention to the application of state law to determinations of R.S. 2477 questions:
One interpretation, which Sierra Club propounds, is that state law plays no role whatsoever in the determination of the existence and scope of R.S. 2477 rights-of-way. This position, however, 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.
In response to the plaintiffs’ arguments that continued application of state law to R.S. 2477 questions would defeat Congress’ intentions in enacting FLPMA, the court said:
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. at 1082.
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. Id. at 1082-1083.
R.S. 2477 rights-of-way, to be valid, must have been perfected on or before October 21, 1976. These rights-of-way have been in existence for many years and have been relied upon by the public, which has established and maintained them to conduct normal activities that rely upon rights of travel and access. Long-standing regulations and case law have provided guidance regarding the elements for the perfection of the rights and the scope of the rights, once perfected. These principles have relied heavily on state law and rightfully so since conditions appropriate to right-of-way development and use differ from state to state. Current efforts on the part of environmental groups and, more recently, the Department of the Interior, to diminish these rights, are unsupported by fundamental legal principles and will generate new controversy and litigation, rather than clarify the rights and liabilities of interested parties.
Schultz v. Department of Army, 10 F.3d 649 (9th Cir. 1993).
U.S. v. Jenks, 804 F. Supp. 232 (D.N.M. 1992).
U. S. v. Vogler, 859 F.2d 638 (9th Cir. 1988).
Wilkenson v. Dept. of Interior, 634 F.Supp. 1265 (D. Colo. 1986).
United States v. Gates of the Mountains Lakeshore Homes, Inc., 732 F.2d l411 (9th Cir. 1984).
City of Denver v. Bergland, 695 F.2d 465 (1982).
Humboldt County v. the United States of America, 684 F.2d 1276 (9th Cir. 1982).
Kleppe v. New Mexico, 426 U.S. 529, 49 L Ed 2d 34, 96 S Ct 2285 (1976).
Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir. 1973).
Park County, Montana v. the U.S., 626 F.2d 718 (9th Cir. 1980) cert. denied, 449 U.S. 1112 (1981).
The United States v. 161 Acres of Land, 427 F.Supp. 582 (D. Colo. 1977).
The United States v. Dunn, 478 F.2d 443 (9th Cir. 1973).
United States v. 9,947.71 Acres of Land, 220 F. Supp. 328 (D. Nev. 1963).
Central Pacific Railway. Co. v. Alameda County, 284 U.S. 463 (1932).
State of Colorado v. Toll, 45 S.Ct. 505, 268 U.S. 228, 69 L.Ed 927 (1924).
I. UNDER R.S. 2477 CONGRESS OFFERED A SELF-EXECUTING GRANT OF RIGHTS-OF-WAY. 3
II. PERFECTED R.S. 2477 RIGHTS VESTED AS PROPERTY RIGHTS. 5
III. STATE LAW PROVIDES THE BASIS FOR DETERMINATION OF THE EXISTENCE AND SCOPE OF R.S. 2477 RIGHTS-OF-WAY. 6
IV. ALL VALID EXISTING R.S. 2477 RIGHTS-OF-WAY WERE PERFECTED NO LATER THAN THE REPEAL OF R.S. 2477 IN 1976. 9
V. IN UTAH, THE RIGHT-OF-WAY COULD BE PERFECTED BY GOVERNMENTAL ACTION OR PUBLIC USE. 15
VI. IN UTAH, THE SCOPE IS DEFINED BY WHAT IS REASONABLE AND NECESSARY TO PROVIDE SAFE TRAVEL FOR LEGITIMATE USES. 17
VII. R.S. 2477 RIGHTS-OF-WAY ARE PROTECTED BY FLPMA. 20
VIII. FEDERAL REGULATORY AUTHORITY OVER R.S. 2477 IS LIMITED BY THE OBLIGATION TO HONOR THE VESTED PROPERTY RIGHT. 21
IX. THE PROVISIONS OF NEPA APPLY IN A LIMITED WAY TO SOME R.S. 2477 IMPROVEMENT PROJECTS. 23
X. ESTABLISHED APPROACHES TO DEALING WITH R.S. 2477 RIGHTS-OF-WAY SHOULD NOT BE CHANGED. 24
XI. CONCLUSION 26
- A selected bibliography of those cases is attached.
- “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) (emphasis added).
- This court’s treatment of the term “construction” in R.S. 2477 is addressed in section IV, below.
- This definition was not incorporated in its entirety into the BLM Manual.
- According to materials provided in Appendix V to the United States Department of the Interior “Report to Congress on R.S. 2477: The History and Management of R.S. 2477 Rights-of-way Claims on Federal and Other Lands” dated June, 1993, Alaska, Colorado, Idaho, Kansas, Nebraska, New Mexico, Oregon, Utah, Washington and Wyoming allowed perfection of public highways by public use.
- BLM’s authority to prevent unnecessary and undue degradation of Wilderness Study Areas was addressed at great length in Sierra Club v. Hodel. The plaintiffs in that case asked the 10th Circuit Court to consider, on rehearing, the application of the unnecessary and undue degradation standard referring to the remaining, non-WSA, public lands. The court declined to do so. No court decision requires the same treatment of non-WSA public lands as that given WSAs.