This is the text of the memorandum approved by Interior Secretary Donald Hodel in 1988. It is significant for two reasons. First, it summarizes the status of RS 2477 interactions with the public lands states and counties and reflects both past administrative actions and many court decisions. Second, as such, it illustrates how extreme the draft regulations issued by the Department of Interior just six years later really were and just how far they departed from previous policy and precedents.
THE SECRETARY OF THE INTERIOR
FROM: Assistant Secretary for Fish and Wildlife and Parks
Assistant Secretary for Land and Minerals Management
SUBJECT: Departmental Policy on Section 8 of the Act of July 26, l866, Revised Statute 2477 (Repealed), Grant of Right-of-Way for Public Highways (RS-2477)
Although RS-2477 was repealed nearly 12 years ago, controversies periodically arise regarding whether a public highway was established pursuant to the congressional grant under RS-2477 and the extent of right obtained under that grant. Under RS-2477, the United States had (has) no duty or authority to adjudicate an assertion or application. However, it is necessary in the proper management of Federal lands to be able to recognize with some certainty the existence, or lack thereof, of public grants obtained under RS-2477.
With the passage of the Federal Land Policy and Management Act, the Bureau of Land Management (BLM) developed procedures, policy, and criteria for recognition, in cooperation with local governments, of the existence of such public highways and notation to the BLM’s land records. This has allowed the BLM to develop land use plans and to make appropriate management decisions that consider the existence of these highway rights.
Issues have recently been raised by the State of Alaska and others which question not only the BLM policy but also the management actions by other bureaus within the Department. We have had the BLM review and report on the various issues and concerns (Attachment 2) and consulted with the State of Alaska, the BLM, the Fish and Wildlife Service, and the National Park Service.
We believe that the land management objectives of the Department will be improved with adoption of a Departmental policy and recommend that the attached policy (Attachment 1) be adopted for Department-wide use.
APPROVE: Donald Paul Hodel
DATE: DEC 07, 1988
ATTACHMENTS: 1-RS-2477 Policy & 2-BLM Report
Section 8 of the Act of July 26, l866
Revised Statute 2477 (43 U.S.C. 932 )
Repealed October 21, l976
Section 8 of the Act of July 26, l866, provided.
“The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
Although this statute, 43 U.S.C. 932 (RS-2477) was repealed by Title VII of the Federal Land Policy and Management Act of October 21, 1976, 90 Stat. 2793, many rights-of-way (R/W) for public highways obtained under the statute exist or may exist on lands administered by the Department and other Federal agencies. The existence or lack of existence of such highway R/Ws has material bearing on the development and implementation of management plans for conservation system units and other areas of Federal lands. Land managing Bureaus of the Department should develop, as appropriate, internal procedures for administratively recognizing those highways meeting the following criteria and recording such recognized highways on the land status records for the area managed by that Bureau.
To constitute acceptance, all three conditions must have been met:
1. The lands involved must have been public lands, not reserved for public uses, at the time of acceptance.
2. Some form of construction of the highway must have occurred.
3. The highway so constructed must be considered a public highway.
PUBLIC LANDS, NOT RESERVED FOR PUBLIC USES:
Public lands were those lands of the United States that were open to the operation of the various public land laws enacted by Congress.
Public lands, not reserved for public uses, do not include public lands reserved or dedicated by Act of Congress, Executive Order, Secretarial Order, or, in some cases, classification actions authorized by statute, during the existence of that reservation or dedication.
Public lands, not reserved for public uses, do not include public lands pre-empted or entered by settlers under the public land laws or located under the mining laws which ceased to be public lands during the pendency of the entry, claim, or other.
Construction must have occurred while the lands were public lands, not reserved for public uses.
Construction is 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 the way, or filling low spots, etc., may be sufficient as construction for a particular case.
Survey, planning, or pronouncement by public authorities may initiate construction, but does not by itself, constitute construction. Construction must have been initiated prior to the repeal of RS-2477 and actual construction must have followed within a reasonable time.
Road maintenance over several years may equal actual construction.
The passage of vehicles by users over time may equal actual construction.
A public highway is a definitive 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. A toll road or trail is still a public highway if the only limitation is the payment of the toll by all users. Multiple ways through a general area may not qualify as a definite route, however, evidence may show that one or another of the ways may qualify.
The inclusion of a highway in a State, county, or municipal road system constitutes being a public highway.
Expenditure of construction or maintenance money by an appropriate public body is evidence of the highway being a public highway.
Absent evidence to the contrary, a statement by an appropriate public body that the highway was and still is considered a public highway will be accepted.
ANCILLARY USES OR FACILITIES USUAL TO PUBLIC HIGHWAYS:
Facilities such as road drainage ditches, back and front slopes, turnouts, rest areas, and the like, that facilitate use of the highway by the public are considered part of the public highway R/W grant.
Other facilities such as telephone lines, electric lines, etc., that were often placed along highways do no facilitate use of the highway and are not considered part of the public highway R/W grant. An exception is the placement of such facilities along such R/W grants on lands administered by the Bureau of Land Management prior to November 7, l974 Prior to this date, the requirement of filing an application for such facilities was waived. Any new facility, addition, modification of route, etc., after that date requires the filing of an application/permit for such facility. Facilities that were constructed, with permission of the R/W holder, between November 7, l974, and the effective date of this policy, should, except in rare and unusual circumstances, be accommodated by issuance of a R/W or permit authorizing the continuance of such facility.
For those highway R/Ws in the State, county, or municipal road system, i.e., the R/W is held and maintained by the appropriate government body, the width of the R/W is as specified for the type of highway under State law, if any, in force at the time the grand could be accepted.
In some cases, the specific R/W may have been given a lesser or greater width at the time of creation of the public highway than that provided in State law.
Where State law does not exist or is not applicable to the specific highway R/W, the width will be determined in the same manner as below for non-governmentally controlled highways.
Where the highway R/W is not held by a local government or State law does not apply, the width is determined from the area, including appropriate back slopes, drainage ditches, etc., actually in use for the highway at the later of (1) acceptance of the grant or (2) loss of grant authority under RS-2477, e.g., repeal of RS-2477 on October 21, l979, or an earlier removal of the land from the status of public lands not reserved for public uses.
Abandonment, including relinquishment by proper authority, occurs in accordance with State, local or common law or Judicial precedence.
RESPONSIBILITIES OF AGENCY AND RIGHT-OF-WAY HOLDER:
This policy addresses the creation and abandonment of property interests under RS-2477 and the respective property rights of the holder of a R/W and the owner of the servient estate.
Under the grant offered by RS-2477 and validly accepted, the interests of the Department are that of owner of the servient estate and adjacent lands/resources. In this context, the Department has no management control under RS-2477 over proper uses of the highway and highway R/W unless we can demonstrate unnecessary degradation of the servient estate. It should be noted, however, that this policy does not deal with the applicability, if any, of other federal, state, and/or local laws on the management or regulation of R/Ws reserved pursuant to RS-2477.
Reasonable activities within the highway R/W are within the jurisdiction of the holder. As such, the Department has no authority under RS-2477 to review and/or approve such reasonable activities. However, review and approval may or may not occur, depending upon the applicability, if any, of other federal, state, or local laws or general relevance to the use of a R/W.