NOTE: This handbook was created by attornies Barbara Hjelle and Steve Urquhart for use in the ongoing series of workshops for Utah Counties on how the deal with RS. 2477 problems and issues. While it is keyed to Utah law and issues, it also offers invaluable general guidance for any public land county in dealing with federal agencies and protecting their rights of access–as well as the public’s–to and across public lands.
Table Of Contents
R.S. 2477 Overview Why 2477 rights-of-way are vital to counties, a summary of Interior’s proposed regulations and the pending Congressional legislation. Also an action checklist for counties.
Right-of-way Inventory Determining, identifying, and documenting 2477 rights-of-way. Maintainance and ConstructionKowing your rights, prioritizing projects, notice, responding to objections, and going to work. Road Closures and FLPMA Title V PermitsProtecting your rights, understanding Title V permits, and dealing with road closures.Preliminary 2477 PoliciesAn outline of key county goals and concerns on the 2477 issues. County Action Items ChecklistThings you should do to protect your rights.
County Resolution Text of a model resolution dealing with 2477 rights.
Appendix 1 A discussion of fundamental 2477 legal principles.
Appendix 2 A simple explanation of why the proposed 2477 regulations are so unacceptable.
Appendix 3 The text of pending legislation.
Appendix 4 A sample road inventory form.
Appendix 5 Sample statement forms for documenting 2477 rights-of-way.
Appendix 6 Sample road construction notice form.
Appendix 7 An example of a modified FLPMA permit.
R.S. 2477 OVERVIEW
I. These Rights-Of-Way Are Vital To Utah
Most roads in Utah’s transportation network were established by a congressional grant of 1866 (commonly referred to as “R.S. 2477”). By way of example, approximately 90% of all roads in Utah’s ten southern counties are R.S. 2477 rights-of-way.
R.S. 2477 rights-of-way are vested property rights entitled to all applicable constitutional protections. Up until just recently, those property rights have been consistently protected by uniform regulatory and judicial actions. Even when the grant was repealed in 1976, Congress took great pains to ensure that existing R.S. 2477 rights-of-way would be protected.
FOR MORE DETAILS ON R.S. 2477 LEGAL PRINCIPLES, SEE APPENDEX 1.
II. Interior’s Proposed Regulations
In August of 1994, more than a century’s worth of consistent R.S. 2477 policy and law was thrown into flux. At that time, the Department of Interior proposed regulations to “inventory” existing R.S. 2477 rights-of-way. That “inventory” process would invalidate many R.S. 2477s and would cast a cloud over all R.S. 2477s. No matter how big or how clearly valid a right-of-way is, the Interior’s regulations would require the owner to either meet a series of rigorous requirements or lose the right-of-way. Even when the requirements are met, the regulations would take from the counties many of the rights associated with R.S. 2477 roads. The regulations clearly (1) exceed the Interior’s authority, (2) flaunt Congress’ specific instructions to the Interior, and (3) violate fundamental constitutional principles. Nevertheless, the regulations still loom on the horizon.
Through the recently passed Highway Bill, Congress has imposed a moratorium on Interior’s R.S. 2477 regulations. The moratorium, however, will remain in effect only until September 30, 1996.
FOR MORE DETAILS ON INTERIOR’S REGULATIONS, SEE APPENDIX 2.
III. Pending Congressional Legislation
Members of the Utah delegation, in conjunction with members of the Alaska delegation, have introduced legislation that would require any regulation regarding R.S. 2477 to be authorized by Congress before being finalized. It is too early to determine whether this legislation will be successful.
FOR MORE DETAILS ON THE PENDING LEGISLATION, SEE APPENDIX 3
IV. County Action Items
The Department of Interior is taking action on R.S. 2477. Congress is also taking action. Counties, likewise, need to take action on R.S. 2477 in order to enhance their position. Some actions might include the following:
(1) Set County Policy on R.S. 2477,
() Pass a Resolution to Establish That Policy;
(2) Inventory Your Roads (Section II of this packet discusses this item in detail; there, individual action items are presented);
(3) Perform Road Construction and Maintenance in a Way That Protects Your Rights (Section III of this packet discusses this item in detail; there, individual action items are presented).
(4) Resist Improper Road Closures and Unequal Exchanges of Access Rights (Section IV of this packet discusses this item in detail; there, individual action items are presented).
No matter how this issue is ultimately resolved, completion of these action items will improve a County’s R.S. 2477 situation.
The fleshed-out list of action items is attached as tabbed item No. 6. As you can see, this workshop suggests that Counties take 12 separate action items to improve their R.S. 2477 situation. Some of these items require formal commission action; others require a few minutes and a few computer keystrokes; still other items require on-going policy and procedural changes; and some items will arise only in certain situations, if ever
I. Determine Categories of Rights-Of-Way
Realizing that it costs money to assert and maintain rights-of-way, counties first must determine which categories of rights-of-way justify such costs. Categories of rights-of-way include the following:
(1) Two-wheel drive roads
(2) Four-wheel drive roads
(3) Horse paths
(4) Foot trails
As you go down the list, the likelihood of greater and more costly battles increases.
Legal authority does exist to suggest that each category listed above could be a valid type of R.S. 2477 “highway.” Courts have broadly defined “highway” to include paved, gravel, and dirt roads (for two- and four-wheel drive vehicles), horse trails, footpaths, and even some rivers and dogsled trails. Arguably, therefore, any type of “highway” used for transportation purposes is potentially a valid R.S. 2477 right-of-way.
In its proposed regulations, however, Interior restrictively defined “highway” to mean only “a thoroughfare . . . for the passage of vehicles . . ..”
Thus, substantial controversy does exist regarding the definition of “highway.” This means that, as a preliminary matter, counties must determine which categories of rights-of-way justify the investment associated with assertion and maintenance.
II. Identify R.S. 2477 Rights-of-way
Know what roads you have. The easiest, most cost-effective way to do this might be to enlist the help of your road crew, sheriff’s office, and other groups that routinely get out and drive these roads. As they perform their other duties, ask them to make notes about the roads they travel — where the roads go, how long each road is, what condition the road is in, and how many people use the road per day. An organized approach will help you figure out how many roads you have and where they are.
These efforts should be coordinated with information contained on maps to assure accurate location of the roads.
FOR A SAMPLE “ROAD INVENTORY FORM,” SEE APPENDIX 4.
Be aware that most likely the county will some day have to prove the validity of each and every R.S. 2477. Accumulating the documentation necessary to do that is a time-consuming task. If counties do not perform the task now, they might run up against a short deadline under some possible scenario that would, in effect, invalidate their rights. Also, documentation will get lost over time and, if not accumulated today, may not be available when needed. One area where this could happen involves personal statements of knowledgeable people who may be dead by the time evidence is needed.
To make the case that a right-of-way is valid, a county will need to show (1) when the right-of-way was established, (2) that the right-of-way is used by the “public,” and (3) that the lands were not “reserved” at the time the right-of-way was established. To accomplish this, counties should gather documentation that shows when the road was created, how it has been maintained, and how the road has been used. Some ways to accomplish this task include:
(1) talk with people who know the history of the road and get their written statements;
(2) look through old county documents for mention of the roads;
(3) locate the roads on maps, agreements, MOUs and other documents; and
(4) determine when, if ever, the lands were “reserved.”
FOR A SAMPLE STATEMENT FORM, SEE APPENDIX 5.
FOR A DISCUSSION OF MANY OF THE LEGAL PRINCIPLES DISCUSSED IN THIS SECTION,
SEE APPENDIX 1.
IV. County Action Items
To effectively inventory rights-of-way in preparation for future validity determinations, counties should do the following:
(1) Determine which categories of rights-of-ways the county intends to assert and maintain;
(2) Determine how many rights-of-way the county has and where they are located; and
(3) Gather documentation to show that each right-of-way is valid.
Taking these steps, Counties will be ahead of the game when it later comes time to prove validity for any and all rights-of-way. The importance of this inventory effort becomes all the more clear when viewed in light of the extremely short timeframe provided in Interior’s regulations for submitting all such documentation (2 years). If Interior’s regulations become final and counties have not taken steps to inventory and document their R.S. 2477s, it could be too late to gather the necessary evidence for all R.S. 2477s
MAINTENANCE AND CONSTRUCTION
I. Know Your Rights
This section is aided by a quick discussion of the legal rights that come with R.S. 2477 rights-of-way.
A 2477 right-of-way functions like an easement across someone else’s land. An easement involves two parties — the owner of the easement (here, most often, the counties) and the owner of the land (here, most often, the federal government). The owner of the easement is allowed legally to make certain uses of his easement, even though those uses impose some burdens on the landowner.
The easement rights are made clearer when this situation is put in more familiar terms. Let’s say that you reach your house by using a valid easement across your neighbor’s pasture. Your rights in that easement would allow you to use that road, to maintain it and even to improve it in certain circumstances. Now, let’s say that one day your neighbor decides that he does not like you having that easement, and he spends his energies keeping you from using it. Clearly, your neighbor’s new hostility does not affect your legal rights in the easement; it just makes using the easement more of a hassle. Confronted with your neighbor’s new hostility, you would likely exercise your rights to the easement in the following manner. Knowing that your neighbor will haul you into court in a heartbeat, you would first make sure that you never exceed your rights; where possible, you would work cooperatively with your neighbor and try to improve relationships; but, where cooperation is not possible, you would assert your rights, when necessary.
The above scenario fairly describes the current situation with R.S. 2477 rights-of-way. We can use the principles from that more familiar scenario to deal with this larger-scale dispute. Again, knowing that your neighbor will haul you into court in a heartbeat, counties first must make sure that they never exceed their rights; where possible, they should work cooperatively with the federal government and try to improve relationships; but, where cooperation is not possible, they should assert their rights.
For R.S. 2477, counties generally possess a right to make reasonable and necessary improvements to the right-of-way. What is “reasonable and necessary” is determined by safety and convenience. The limitation imposed on this right is that the improvements cannot “unnecessarily or unduly degrade” any surrounding federal Wilderness Study Areas if any. The Hodel Court established that unnecessary or undue degradation occurs whenever the best reasonable available technology is not incorporated into the improvements. In other words, the application of the appropriate AASHTO standard ensures that a project does not unnecessarily or unduly degrade.
Counties should know that the federal government now refuses to comply with most of these established principles. Thus, by proceeding down this line, even though a county’s actions might be legally permissible, counties could, nevertheless, be faced with harsh bureaucratic reactions.
II. Prioritize Projects
Create and update a list of proposed construction and maintenance projects for your rights-of-way. This list could be determined by some of the following factors:
(1) the volume and type of traffic on the right-of-way;
(2) physical characteristics and configuration of the right-of-way;
(3) on-site inspections performed by county personnel or agents;
(4) consultation with transportation experts who have the expertise to make an evaluation of the relative dangerousness of R.S. 2477 rights-of-way;
(5) consideration of public comments, if any; and
(6) the applicable AASHTO standard that will be applied to the right-of-way.
(7) any other factor relating to safety.
Next, the projects on this list should be evaluated and prioritized. Prioritization might be based upon available funding and the applicable safety requirements that must be applied.
In the Utah Code, section 27-16-107, the Utah legislature stated that counties have immunity from injuries or damages occurring on R.S. 2477 rights-of-way. There, the legislature recognized that there are limited funds available to upgrade all R.S. 2477 rights-of-way to applicable safety standards. Based on evaluation and assigning of priorities for the promotion of public safety, a county must use its judgment and expertise to evaluate which safety improvements should be made first. The state legislature has stated that such evaluation should specifically take into account the first four (4) factors listed immediately above.
At times, notice to the servient estate holder is appropriate. This depends on the type and scale of activity being conducted. If no significant disturbance will be created by the activity, notice is probably not necessary because no new impact is being imposed on the servient estate holder.
On the other hand, activities creating significant new disturbances may suggest that notice should be given. Such notice might state the following:
1. That records regarding the existence of the right-of-way are available for review at county offices;
2. A description of the planned work and potential new disturbance, including the date work will commence if known; and
3. If appropriate, that the affected landowners may review the plans and visit the site.
The notice might also state that affected landowners may lodge an objection to the activity on any of three grounds.
(1) That the right-of-way is not valid
(2) That the activity exceeds the scope of the right-of-way; or
(3) That the work does not utilize appropriate design or technology or otherwise respect the rights of the servient estate.
When objections may be lodged, notice should also clarify that the factual basis for each objection must be provided.
FOR A SAMPLE NOTICE FORM, SEE APPENDIX 6.
IV. Responses to Objections
As mentioned above, the only three factually supported responses that may delay the proposed activity relate to information that was not previously known when the county proposed its activity. That new information will involve right-of-way validity, activities outside the scope of the right-of-way, and respect for the rights of the servient estate. Upon receiving such an objection, the county may respond in writing and, if appropriate, schedule a site visit or meeting.
V. Going To Work
Work should be conducted so as to respect the property rights of the surrounding lands. This means that safety standards should control the work that is done. And, even then, safety standards causing the least impact should be selected, where possible.
Counties should take care to avoid any unnecessary impacts on the surrounding lands. This means that, where appropriate, construction should be preceded by surveys for endangered species and archeological sites.
Also, a representative of the servient estate holder should be allowed to observe construction activities, so long as the representative’s presence does not unduly interfere with the work. If the observer objects to a construction activity on site, the construction manager should consider avoiding the activity in question until the county commission has a chance to review the activity. However, the observer’s objection will not halt work that has been disclosed in prior notices or site reviews, except where unexpected conditions arise.
VI. Action Items
The following action items will help counties maintain and improve R.S. 2477 rights-of-way as efficiently as possible.
(1) Create and update a list of proposed construction and maintenance projects; evaluate and prioritize these projects;
(2) Provide notice to servient estate holder, where appropriate; where appropriate, respond to objections;
(3) Implement policies to ensure regard for surrounding lands.
ROAD CLOSURES AND FLPMA TITLE V PERMITS
I. Know Your Rights And Protect Them
Counties need to vigilantly protect their vested property rights. This means that counties should not trade R.S. 2477 rights-of-way for lesser rights, where possible. And, counties should require that interference with continued use of a right-of-way proceed according to constitutional procedures.
II. FLPMA Title V Permits
Federal agencies increasingly are offering counties the chance to “settle” disputed rights-of-way by way of FLPMA permits. There are several disadvantages to having a FLPMA right-of-way as opposed to an R.S. 2477 right-of-way. To obtain a FLPMA right-of-way a county must submit plans, contracts, agreements, and other relevant information relating to the use of the right-of-way to the BLM. After submitting this information, it is entirely within the discretion of the BLM to accept or deny the application for the right-of-way. Also a FLPMA right-of-way is more limited than an R.S. 2477 right-of-way. A FLPMA right-of-way is temporary and revokable at the discretion of the federal government, whereas an R.S. 2477 right-of-way is potentially infinite in duration. Furthermore, a fee generally must be paid to obtain and retain a FLPMA right-of-way. Thus, FLPMA permits do not give counties the same rights that counties enjoy under R.S. 2477.
Counties must be aware that the government cannot force a county to exchange an R.S. 2477 right-of-way for a FLPMA permit.
Nothing in [FLPMA] shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted or permitted. However, 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.
43 U.S.C. 1769(a).
Where, however, a county deems it necessary to accept such a transfer, the FLPMA permit should be modified to represent as much as possible the rights possessed under R.S. 2477 and to specify that acceptance of the FLPMA permit does not constitute an abandonment of rights possessed pursuant to R.S. 2477.
FOR SUCH A MODIFIED FLPMA PERMIT, SEE APPENDIX 6.
III. Roads Can Only Be Closed According To Laws, Not Someone’s Whim
Permanent closure of R.S. 2477 rights-of-way can only occur in accordance with Utah Code Ann. 27-12-90 et seq. Counties should not sit back and allow the servient estate holder to dictate the uses of the dominant estate.
To illustrate this principle, we will again use the example of an easement across your neighbor’s pasture. One day your neighbor puts up a gate across your easement. Again, your neighbor’s new hostility does not affect your legal rights in the easement. In such a situation, you would likely attempt to work cooperatively with your neighbor. If that failed, you might also go to court to have the gate removed.
In the R.S. 2477 context, counties should resist improper road closures. A management decision made by the servient estate holder must respect the rights of the dominant easement estate. In order to quickly move to have the gate removed, the counties must have completed the inventory process outlined previously.
At times, the servient estate owner might request that a road be closed temporarily. This, too, cannot be forced on the county, but should only occur according to law or according to the discretion of the county. If the servient estate owner requests closure of a right-of-way, the county should work with the servient estate owner to arrive at a mutually acceptable arrangement, where possible.
Any closure, permanent or temporary, requested by the servient estate owner may require compensation, as the specific facts dictate.
IV. Action Items
To avoid having their rights diluted by the servient landowner, Counties should perform the following tasks:
(1) Establish a policy that any exchange of R.S. 2477 rights requires formal commission action;
(2) Whenever the servient estate holder impairs access across a valid R.S. 2477 right-of-way, the County will oppose that impairment or seek proper compensation
DISCUSSION DOCUMENT REGARDING R.S. 2477 POLICIES
I. GENERAL PRINCIPLES
A. R.S. 2477 rights-of-way are vested property rights entitled to all applicable constitutional protections.
B. The Judiciary is the proper branch of government to conclusively determine the validity of R.S. 2477 rights-of-way.
C. In Utah, R.S. 2477 rights-of-way were validly established by a governmental entity’s affirmative act or by public use over a sufficient period of time.
D. The “bundle of rights” for each R.S. 2477 right-of-way depends on the established uses of the right-of-way at the earlier of September 21, 1976, or whenever the underlying federal lands were reserved.
E. Counties may perform a validity analysis for rights-of-way within their jurisdiction.
F. Counties may maintain and improve R.S. 2477 rights-of-way.
G. The authority of the servient estate holder to influence the enjoyment of R.S. 2477 rights-of-way is limited to specified conditions.
H. Where the servient estate holder is not authorized to influence the enjoyment of a right-of-way, Counties may decide whether to seek the servient estate holder’s input on maintenance and improvement activities
A. RIGHT-OF-WAY VALIDITY ANALYSIS
The goal of a right-of-way validity analysis is to fully incorporate valid R.S. 2477 rights-of-way into the county transportation system. This includes prioritization of transportation needs and identification, documentation, and classification of valid R.S. 2477 rights-of-way.
a. Counties will prioritize R.S. rights-of-way according to transportation needs and financial restrictions.
a. Counties will identify which R.S. 2477 rights-of-way meet established priorities.
a. Counties will actively compile documentation regarding the establishment, use, and maintenance for each road.
a. Counties will classify each right-of-way by type of use.
b. Counties will specify the desired standards for each road.
B. MAINTENANCE & CONSTRUCTION ACTIVITIES
The goal for maintenance and construction activities is to meet the transportation needs of the county. This includes cooperation with the servient estate holder, where appropriate, and sufficient planning so that the rights of both the dominant and servient estate holders will be honored.
a. Counties will create and update a list of proposed construction projects for documented R.S. 2477 roads.
b. Counties will evaluate and prioritize maintenance and construction activities.
a. Counties are not required to notify the servient estate holder for routine maintenance of R.S. 2477s and construction that will not create a new disturbance.
b. Where construction will create a new disturbance, counties will notify affected landowners of the proposed construction activities. Notice will state:
i. that records regarding the existence of the right-of-way are available at county offices;
ii. a description of the planned work and potential new disturbance, including the date work will commence if known; and
iii. if appropriate, that the affected landowners may review the plans and visit the site.
c. Notice will state that affected landowners may object that (1) the right-of-way is not valid, (2) the activity exceeds the scope of the right-of-way, or (3) the work does not utilize appropriate design or technology or otherwise respect the rights of the servient estate. Notice will specify that the factual basis for each objection must be provided.
a. The only three responses that may delay the proposed activity are facts showing that (1) the right-of-way might not valid, (2) the activity might exceed the scope of the right-of-way, or (3) the work might not utilize appropriate design or technology or otherwise respect the rights of the servient estate. An objection not providing facts relevant to these grounds will not be considered, except in exceptional cases, which will be addressed on a case-by-case basis.
b. The county may respond to properly raised objections in writing. If appropriate, the county may schedule a site visit or meeting.
4. REGARD FOR SURROUNDING LANDS
a. Construction will be conducted so as to meet applicable safety standards. Where possible, safety standards causing the least impacts will be selected.
b. Construction activities will be conducted so as to avoid any unnecessary impacts.
c. Where appropriate, construction will be preceded by surveys for endangered plant or animal species and archeological sites.
d. A representative of the servient landowner may be present to observe construction activities, so long as the representative’s presence does not unduly interfere with the work.
i. If the observer objects to construction activity on site, the construction manager will consider avoiding the activity in question until the county commission has a chance to review the activity.
ii. Except where unexpected conditions arise, the observer’s objection will not halt work that has been disclosed in prior notices or site reviews.
5. 4-WHEEL DRIVE ROADS, HORSE TRAILS & FOOT PATHS (IF ANY)
a. These rights-of-way will be maintained in accordance with historical practice. No safety standards apply.
b. Generally, no new disturbance will occur. If an exception arises, notice will be provided, as specified above.
a. When emergency situations arise on R.S. 2477 rights-of-way, the County should be notified.
C. RIGHT-OF-WAY EXCHANGES & CLOSURES
The goal regarding right-of-way exchanges and closures is to protect the vested property rights of the county.
a. R.S. 2477 rights-of-way may not be exchanged without formal action by the county commission.
2. ROAD CLOSURES
a. Permanent closure of R.S. 2477 rights-of-way can only occur in accordance with Utah Code Ann. 27-12-90 et seq.
b. Temporary closure may occur upon the request of the servient estate owner, at the discretion of the county.
c. If the servient estate owner requests closure of a right-of-way, the county will work with the servient estate owner to arrive at a mutually acceptable arrangement, where possible
d. Any closure, permanent or temporary, requested by the servient estate owner may require compensation, as the specific facts dictate.
COUNTY ACTION ITEMS CHECKLIST
(A) Determine county policy regarding R.S. 2477 rights-of-way;
(B) Prepare and adopt a county resolution implementing the county’s policy.
I. Road Inventory
(A) Determine which categories of rights-of-ways the county intends to assert and maintain;
(B) Determine how many rights-of-way the county has and where they are located;
(C) Gather documentation to show that each right-of-way is valid.
II. Road Maintenance and Construction
(A) Create and update a list of proposed construction and maintenance projects;
(B) Evaluate and prioritize the projects on the list;
(C) Provide notice to servient estate holder, where appropriate;
(D) Where appropriate, respond to objections; and
(E) Implement policies to ensure regard for surrounding lands
III. Road Closures and FLPMA Title V Permits
(A) Establish a policy that any exchange of R.S. 2477 rights requires formal commission action; and
(B) Establish a policy that whenever the servient estate holder impairs access across a valid R.S. 2477 right-of-way, the County will oppose that impairment or seek proper compensation.
WHEREAS, the United States Congress granted the right-of-way for the construction of highways over public lands, not reserved for public uses in Section 8 of the Mining Act of 1866, reenacted and recodified as Revised Statutes 2477 (R.S. 2477), 43 U.S.C. 932; and
WHEREAS, the United States Congress intended to promote the settlement of the western United States by granting rights-of-way for the construction of highways; and
WHEREAS, County, Utah, is the owner of highway rights-of-way accepted pursuant to the grant offered under R.S. 2477; and
WHEREAS, the County accepted the grant offered under R.S. 2477 through public use, County construction or maintenance of the rights-of-way or other action establishing the County’s intent to accept the offer contained in R.S. 2477; and
WHEREAS, the County and the public relied upon the terms of the offer, as established by the common law of statutory construction, federal regulations since at least 1938, federal statements of policy, and numerous rulings of state and federal courts which have addressed the terms of the offer contained in R.S. 2477, in accepting and administering the granted rights-of-way; and
WHEREAS, these rights-of-way are essential to the County’s transportation and public access systems the public has relied on and continues to rely on them since prior to October 21, 1976; and
WHEREAS, state, county and local health, search and rescue, resource management, fire protection and law enforcement personnel rely on these access routes to carry out important public functions; and
WHEREAS, public access to routes of travel are essential to the economic, social and political well-being of the communities within the County; and
WHEREAS, these rights-of-way are important to the free flow of commerce in the United States; and
WHEREAS, the existence of a highway establishes a presumption that the highway has continued in use in its present location since the land over which it is built was public land not reserved for public use; and
WHEREAS, the federal government owns approximately % of the lands in the County; and
WHEREAS, the United States is the owner of the servient estate traversed by rights-of-way accepted by the County pursuant to the grant offered in R.S. 2477; and
WHEREAS, the regulatory powers of the United States are limited by the obligation to honor valid existing rights, including the rights-of-way accepted pursuant to the grant offered under R.S. 2477; and
WHEREAS, other property owners may have succeeded the United States as owner of the servient estate traversed by rights-of-way accepted by the County pursuant to the grant offered in R.S. 2477 and the rights of those property owners in the servient estate is limited by the obligation to honor the rights-of-way accepted by the public pursuant to the grant offered under R.S. 2477; and
WHEREAS, the County is, and has been since its creation, responsible under state law to provide a safe transportation system for the traveling public and to support the local economy, custom and culture; and
WHEREAS, the County’s right, title and interest in these rights-of-way includes the right to perform any and all construction and maintenance which is reasonable and necessary for safe passage for the uses established prior to the repeal of R.S. 2477 or the reservation of the lands for public use, as those uses may increase over time, based upon currently-applicable safety standards, including, at a minimum, the existing disturbed area occupied by the rights-of-way and associated improvements; and
WHEREAS, the rights-of-way accepted pursuant to the grant offered under R.S. 2477 have not been abandoned or waived except where formal procedures provided under state law have been followed; and
WHEREAS, it is the policy of the County to ensure that all rights-of-way accepted pursuant to the grant offered under R.S. 2477 be retained in perpetuity for the use and benefit of the public; and
NOW, THEREFORE, BE IT RESOLVED, as follows:
As used in this resolution:
- “Acceptance,” “acceptance of a right-of-way for the construction of a highway over public lands, not reserved for public uses,” or “accepted” means one or more of the following acts prior to October 21, 1976,
- by the County or person with the intention of creating a public highway over public lands:
- construction or maintenance of a highway;
- inclusion of the right-of-way in a state, county, or municipal road system, plat, description, or map of county roads;
- expenditure of any public funds on the highway;
- execution of a memorandum of understanding or other agreement with any other public or private entity or an agency of the federal government that recognizes the right or obligation of the County to construct or maintain the highway or a portion of the highway; or
- use by the public for the period required by Section 27-12-89 or prior state law; or
- any other act consistent with state or federal law indicating acceptance of a right-of-way.
- by the County or person with the intention of creating a public highway over public lands:
- “Construction” means any physical act of readying a highway for use by the public according to the available or intended mode of transportation, including, foot, horse, vehicle or other mode. “Construction” includes:
- removing vegetation;
- moving obstructions, including rocks, boulders, and outcroppings;
- filling low spots;
- maintenance over several years;
- creation of an identifiable route by use over time; and
- other similar activities.
- “Highway” means:
- any road, street, trail, or other access or way that is open to the public to come and go at will, without regard to how or by whom the way was constructed or maintained; and
- appurtenant land and structures including road drainage ditches, back and front slopes, cut and fill slopes, turnouts, rest areas, and other areas that facilitate use of the highway by the public. “Highway” includes pedestrian trails, horse paths, livestock trails, wagon roads, jeep trails, logging roads, homestead roads, mine-to-market roads, alleys, tunnels, bridges, and all other ways and their attendant access for maintenance.
- “Maintenance” means any physical act of upkeep of a highway or repair of wear or damage whether from natural or other causes.
- “Public lands not reserved for public uses” means any federal lands open to entry or location.
- “R.S. 2477 right-of-way” or “right-of-way” means a right-of-way for a highway constructed in this County on public lands not reserved for public uses and accepted by the County prior to October 21, 1976.
- The County hereby finds that the following rights-of-way were accepted as public highways across public lands prior to October 21, 1976:
[SEE EXHIBIT A]
- The failure to include any right-of-way in paragraph II.A is not intended as evidence that said right-of-way was not accepted pursuant to R.S. 2477. The identification of R.S. 2477 rights-of-way in paragraph II.A may be amended from time to time as evidence establishing the perfection of any R.S. 2477 right-of-way becomes available.
- The County shall not be deemed to consent or have consented to the exchange of any R.S. 2477 right-of-way unless a formal written resolution specifically so stating has been passed at a duly called public meeting of the County Commission. No employee or agent of the County has been given authority to abandon, waive or exchange any R.S. 2477 right-of-way and any prior action by any employee or agent purporting to take any such action was void when taken, unless
- in the case of exchange, later ratified by formal written resolution as provided herein, or
- in the case of abandonment or waiver, action has been taken in accordance with the procedures in Title 27, Chapter 12, Article 6, in which case the right-of-way reverts to the state.
- Where an R.S. 2477 right-of-way has been perfected through public use, the failure by the County to conduct mechanical maintenance of said right-of-way shall not affect in any way the status of said right-of-way as a highway accepted by the public pursuant to R.S. 2477.
- The omission of any right-of-way from any plat, description, or map of county roads or highways, whether required by state law or otherwise, shall not be deemed a failure to accept the grant offered under R.S. 2477.
- Abandonment of any R.S. 2477 right-of-way shall take place only in accordance with the procedures in Title 27, Chapter 12, Article 6, Acquisition of Property for Highway Purposes.
- If any R.S. 2477 right-of-way is abandoned by the County, the right-of-way shall revert to the state.
- Scope of right-of-way:
- The scope of the R.S. 2477 right-of-way is that which is reasonable and necessary to ensure safe travel for all uses that occurred before October 21, 1976.
- The scope of the R.S. 2477 right-of-way includes the right to widen the highway as necessary to accommodate the increased travel associated with all uses that occurred before October 21, 1976, up to, where applicable, improving a highway to two lanes so travelers can safely pass each other.
- Unless otherwise established by formal action taken by the County Commission, the width of an R.S. 2477 right-of-way used for vehicular travel may not be less than the setback standards for wilderness boundaries along existing roads as described in Bureau of Land Management Manual H-8560-1, Management of Designated Wilderness Areas, dated July 27, 1988, as follows:
- high standard paved highways shall be 300 feet from the centerline;
- high standard logging roads shall be 100 feet from the centerline;
- low standard logging, jeep, maintenance, dirt roads used for right-of-way, or similar roads shall be 30 feet from the centerline.
- Standards of safety, as established by the Utah Department of Transportation (UDOT) in accordance with Section 27-12-104, and convenience will guide construction and maintenance activities on R.S. 2477 rights-of-way as follows:
- for two-wheel drive roads that are either paved or gravelled, AASHTO standards, as adopted by UDOT, apply.
- for all other two-wheel drive roads, safety will be based upon considerations of (a) the current condition of the right-of-way, (b) the type of vehicles which use the route, (c) foreseeable future needs, and (d) the location/condition of the servient estate.
- for four-wheel drive roads, horse paths, and foot trails, maintenance will proceed in accordance with historical practice.
- The County will design and conduct construction and maintenance activities so as to minimize impacts on the adjacent lands, consistent with applicable safety standards.
- The County and the owner of the servient estate shall exercise their rights without unreasonably interfering with one another. In furtherance of this:
- The County shall design and conduct construction and maintenance activities so as to minimize impacts on adjacent lands, consistent with applicable safety standards.
- The County shall perform maintenance pursuant to applicable state law in accordance with its discretion; no notice to the servient estate owner is required prior to performance of such maintenance.
- Construction within the scope of the right-of-way which will result in significant new disturbance of adjacent land will be preceeded by notice to the adjacent landowner, who may comment on any design feature or construction method which the landowner believes exceeds the scope of the County’s right-of-way.
- The County Sheriff is hereby authorized to take any action necessary to prevent unreasonable interference with the County’s exercise of its rights by the owner of the servient estate.
- Public comment:
- It is in the best interests of the County and the public that facts and legal issues relevant to the County’s management of its rights-of-way accepted under R.S. 2477 be raised in a timely manner and it is a fundamental principle of due process and fairness that any person having knowledge relevant to such facts or issues bring them to the attention of the County.
- Inclusion of any proposed action on the agenda for a duly called public meeting of the County Commission shall be deemed notice to the public for all purposes under this resolution.
- Any factual or legal issue not brought to the attention of the County by presentation at the public meeting where action is proposed or authorized to be taken or by written comments filed within five days of said meeting shall be deemed waived by any party in later proceedings, whether in a court of law or otherwise.
- The procedures of this section VI are applicable to any finding by the County that it has accepted an R.S. 2477 right-of-way, in this or any other resolution.
DATED THIS ___ DAY OF _______, 1996.
Board of County Commissioners