I have reviewed the Draft Report to Congress: R.S.
2477--The History and Management
of the R.S. 2477 Rights-of-Way Claims on Federal and Other Lands
(Draft Report to
Congress) and commend the Bureau of Land Management for its hard work.
However, I
have concerns with a few of the legal conclusions found in that report.
My primary concern is the potential for a too expansive reading of
the applicability of
statutes of limitations to R.S. 2477 routes. Arguments have been made
that if a state
does not affirmatively assert R.S. 2477 rights-of-way on federal lands
after those lands
become part of a forest reserve or wilderness area, then the federal
government has an
automatic adverse claim to the R.S. 2477 rights-of-way. It is further
claimed that the
R.S. 2477 rights-of-way can be permanently lost if a state does not
affirmatively claim
the existence of the R.S. 2477 rights-of-way either administratively or
through a quiet
title action. It has been further asserted that if no quiet title
action is filed within
12 years from the creation of the "adverse" federal claim, then no
quiet title action can
ever be made because the statute of limitations would have expired.
This theory is
wrong on a number of counts.
First of all, the creation of R.S. 2477 rights-of-way are governed
by state law--a
state of affairs that the federal government has acceded to for
generations. Second,
R.S. 2477 rights-of-way are property rights belonging to the people of
the various
states through their state governments. These property rights are fully
protected by
State and Federal Constitutions. Third, because the nature and scope of
the property
rights in R.S. 2477 rights-of-way are governed by state
law, the loss of those property
rights through such common law doctrines as abandonment and adverse
possession must also be governed by state
law. Therefore, the usual elements for adverse
possession must be present as defined in the law of the various states.
Such elements
usually include a requirement that the adverse possession be open and
notorious for a
minimum number of years. Only after these
conditions are met would any particular
statute of limitations begin to run. Furthermore, a crucial element of
the law of
adverse possession in every state is that
adverse possession does not apply against
state sovereigns. In other words, a state government cannot lose its
property through
adverse possession. I shall address several of these points in more
detail below.
A. The Creation and Existence of R.S. 2477 Rights-of-Way
Is Governed by State Law
Despite the statement, in the Draft Report to Congress at Page 13,
that the question of
whether state or federal law should apply to the creation of R.S. 2477
rights-of-way is
not well understood (at least by the Congressional Research Service),
the federal courts
have already made it plain that state law
will be followed. As the courts have stated,
the establishment of an R.S. 2477 right-of-way involves both the
application of federal
law (R.S. 2477) and state law as to whether
a highway has actually been created. In United States v. Gates
of the Mountains Lakeshore Homes, Inc., 732 F.2d 1411
(9th Cir. 1984), the Ninth Circuit determined that the federal
government could, if it
so chose, acquiesce to a state law determination of what was and what
was not a valid
R.S. 2477 right-of-way. In that case, the court was confronted with an
attempt to
place utility lines along an alleged R.S. 2477 right-of-way.
While the court ultimately found that another
right-of-way law governed utility
corridors and that the existence of an R.S. 2477 right-of-way was
irrelevant as to
whether utility lines could be put down, the court also provided some
dicta concerning
how R.S. 2477 rights-of-way are established. The court began by noting
that "[t]he
scope of a grant of federal land is, of course, a question of federal
law. But in some
instances `it may be determined as a matter of federal law that the
United States has
impliedly adopted and assented to a state rule of construction as
applicable to its
conveyances.'" 732 F.2d at 1413 (quoting United States v.
Oregon, 295 U.S. 1 (1935))
(citation omitted). The court went on to say that a different federal
statute controlled
utility easements and, therefore, even if state law addressed the issue
of utility
easements on state highways, federal law would control.
After Gates was decided, the Tenth Circuit Court
of Appeals explained further that in the
case of R.S. 2477 routes, BLMhad affirmatively assented
to state law determinations. Sierra Club v. Hodel,
848 F.2d 1068 (10th Cir. 1988). The court referred to Gates
noting
that the Gates court recognized that the United
States could assent to a state law
understanding of the creation of an R.S. 2477 highway. The Sierra
Club court continued
to note that the only reason why the court in Gates
did not follow state law was
because it was not dealing with an R.S. 2477 right-of-way but with a
utility easement
covered by different statute.
Sierra Club makes it clear that state law plays a
significant role in the determination
of the existence and scope of R.S. 2477 rights-of-way. In response to
Sierra Club's
argument that state law "plays no role whatsoever," the court responded
that Sierra
Club's position "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.
Most instructive of all, perhaps, is Wilderness Society v.
Morton,
479 F.2d 842, 882-83
(D.C. Cir. 1973), where the District of Columbia Circuit Court of
Appeals considered a
challenge to Alaska's assertion of an R.S. 2477 right-of-way to be used
for the trans-Alaska pipeline. In that case, the purpose for
transporting oil was found to be an
appropriate application of R.S. 2477. The court also noted that
"[s]ince the section acts
as a present grant, it is normally not even necessary for the builder
of the highway to
apply for a right-of-way. [Citing federal regulations.] `No application
should be filed
... as no action on the part of the [federal] Government is
necessary.'" 479 F.2d at 882
n.90.
The Wilderness Society court continued to note
that because the land in question was
closed to entry prior to the establishment
of the road, in that particular circumstance,
the government was required to affirmatively grant the rights-of-way.
However, in
normal circumstances, it is clear that no affirmative action is
required by the federal
government.
These federal cases are also consistent with the law of the western states. For example, in California, it is recognized that the establishment of an R.S. 2477 right-of-way is dependent upon the state definition of a highway. Thus, in Ball v. Stephens, 68 Cal. App. 2d 843, 846, 158 P.2d 207 (1945), a California Court of Appeal held that "in order that a road should become a public highway ... it [must] be established in accordance with the laws of the state in which it was located." The court continued to note that in California the public law relating to the establishment of highways read in part that
"public highways are roads, streets, alleys, lanes, courts,
places, trails, and bridges, laid out or erected as such by
the public, or if laid out or erected by others, dedicated or
abandoned to the public, or made such in actions for the
partition of real property."
Id. at 846 (quoting Section 2618 of the California
Political Code of 1883).
The court continued to note that "[d]edication could also be
effected without action by
the state or county." Id. at 846 (emphasis added).
What was needed is evidence of
sufficient public use.(1)
Id.
Thus, under the law of California, a road or trail could become a
public highway merely
through development and use. No affirmative steps by the
state or local government
were required. If, at the time the highway was created,
it was on nonreserved federal
land, it would be an R.S. 2477 right-of-way. Note that this criteria is
not dependent
upon there being any formal acceptance of the road by the federal
government.
Thus, these cases indicate that while the establishment of an R.S.
2477 right-of-way
might be a matter of federal law, the United States has deferred to
state law
interpretations of when a highway is established.
B. R.S. 2477 Rights-of-Way Are Constitutionally
Protected Property Rights
The creation of R.S. 2477 rights-of-way follows from the great
tradition of settling our
nation through the creation of private property and economic rights in
the sparsely
populated western territories. The statutory framework and milieu which
resulted in
R.S. 2477 also resulted in the homestead acts and mining laws (in fact,
R.S. 2477 grew
out of the mining laws). It is beyond debate that the property rights
created with the
homestead and mining laws are protected by the Constitution--even
if full fee-simple
title was not created. Thus, just because an R.S. 2477
right-of-way is technically only
an easement, it is also a full property right protected by the Just
Compensation Clause
of the Constitution. It carries the same protected constitutional
status as does an
unpatented (no full fee title) mining claim. See Wilbur
ex rel. Krushnic,
280 U.S.
306, 316-17 (1929) ("The [unpatented mining] claim is property in the
fullest sense of
that term," and the owner's "possessory right ... is as good as though
secured by
patent."). For this reason, the federal government cannot abrogate R.S.
2477 rights-of-way at will just because they have become "inconvenient"
or contrary to modern
notions that we should not have settled and populated the West.
As the United States Supreme Court held over a century ago:
Under every established government, the tenure of
property is derived mediately or immediately from the
sovereign power of the political body, organized in such
mode or exerted in such way as the community or State
may have thought proper to ordain. ... It is owing to these
characteristics only ... that appeals can be made to the
laws either for the protection or assertion of the rights of
property. Upon any other hypothesis, the law of property
would be simply the law of force. Now, it is undeniable
that the investment of property in the citizen by the
government, whether made for a pecuniary consideration
or founded on conditions of civil or political duty, is
a contract between the State ... and the grantee; and both
the parties thereto are bound in good faith to fulfill it.(2)
Put more directly, "[t]he owner of personal property cannot be
devested of his
ownership without his consent, except by process of law."(3)
C. The Law of Adverse Possession Should Not Apply
to the Abrogation of R.S. 2477 Rights-of-Way
On Page 15 of the Draft Report to Congress mention is made of two
arguments for the
loss of R.S. 2477 rights-of-way--abandonment and adverse possession.
Neither of
these arguments is applicable here. With respect to abandonment, it
makes little sense
that in a state like California, where no affirmative action must be
taken by the state
to confirm an R.S. 2477 right-of-way, there can be abandonment from
mere nonaction. Short of an outright quitclaim deed or equivalent,
abandonment should not be an issue. Put another way, because the state
need do nothing to acquire an R.S. 2477
right-of-way, it hardly makes sense that the state could lose
the same right-of-way by
continuing to do nothing.
The Draft Report to Congress continues by noting, with respect to
the adverse
possession theory, that
R.S. 2477 rights-of-way are easements and, therefore,
interests in land subject to the quiet title statute. If they
are not acted upon within 12 years of the date the Federal
Government takes action that is inconsistent with their
existence, then arguably, they are gone whether they
existed in the first place or not. This would be true
where Congress established a wilderness area, where BLM
designated an area as a WSA, or where the U.S. Forest
Service blocked off a former way and no one had acted on
it for over 12 years. The key point to this legal issue is,
What action by the Federal Government is required to put
others on notice that the Government claims an interest
that may defeat the potential R.S. 2477 right-of-way claim
sufficient to begin the 12-year period?
Draft Report at 15.
A fundamental problem here is the inapplicability of the 12-year
statute of limitations
to quiet title actions of this kind brought against the federal
government by a state
government. 28 U.S.C. 2409a(a) begins by stating:
The United States may be named as a party
defendant in a civil action under this section to adjudicate
a disputed title to real property in which the United States
claims an interest.
This would apply, on its face, to instances where the United States
attempted to claim
an interest in an established R.S. 2477 right-of-way. Subsection (g)
establishes the
relevant statute of limitations:
Any civil action under this section, except for an
action brought by a State, shall be barred unless it is
commenced within twelve years of the date upon which it
accrued.
(Emphasis added.) The only exception to the exclusion of the states
from the statute of
limitations is in those cases where the United States or its lessees or
grantees have
made "substantial improvements or substantial investments ... or
substantial activities." 28 U.S.C. 2409a(i). Obviously, the 12-year
limitation would not apply to a quiet title
action brought by a state when the full extent of the federal
government activity is to
preclude activity through the creation of
wilderness or wilderness study areas.
With respect to private individuals who may wish to bring a claim
against the federal
government in order to quiet title an R.S. 2477 right-of-way, such an
individual
(assuming he or she had standing to bring suit) would only be affected
by the 12-year
statute of limitations 12 years after the federal government's claim
"accrued."
Because the federal appellate courts have held that the law
surrounding the creation
and scope of R.S. 2477 rights-of-way is dependent upon state
law, see, e.g., Sierra Club
v. Hodel, 848 F.2d 1068, it is necessary to look at the law of
adverse possession of the
various states before it can be determined that adverse possession can
run against a
state's interest in an R.S. 2477 right-of-way. If the federal
government's claim to the
rights-of-way is based on abandonment (by the state) or adverse
possession (of the
federal government over the state property), then it must be noted that
in most states
a minimum of 5 to 10 years (the exact period is set by each individual
state law) must
pass before a claim in adverse possession accrues. Only then would the
statute of
limitations begin to run.
Furthermore, it is the law in most, if not all, states that the law
of adverse possession
does not apply to property owned by the state sovereign.
Finally, the idea that the creation of a wilderness or wilderness
study area could
abrogate the existence of an existing R.S. 2477 right-of-way is plainly
contradicted by
the Wilderness Act of 1964 which, at 16 U.S.C. 1133(c), notes that
there shall be no
permanent roads "subject to existing private rights."
Also, 16 U.S.C. 1134(b) states
that "valid occupancies" are guaranteed "ingress and egress ... by
means which have
been or are being customarily enjoyed." In addition, nothing in the
Wilderness Act
serves to provide any notice whatsoever of any sort of abrogation of
any valid existing
rights--including R.S. 2477 rights-of-way. And in every individual
wilderness act
passed by Congress, the passage was made subject to "valid existing
rights." See, e.g.,
Washington State Wilderness Act of 1984, P.L. 98-339, which at Section
4(b), 98 Stat.
302, states that the wilderness areas designated in the Act shall be
administered
"subject to valid existing rights." Because the Wilderness Act
specifically protects valid
existing rights, there is no way that the Act can also be construed to
destroy
valid existing rights such as R.S. 2477 rights-of-way.
In those few instances where the agents of the federal government
may have acted
extralegally by physically blocking an R.S. 2477 right-of-way in
apparent contravention
of the express terms of the statute protecting such "valid existing
rights," it is doubtful
that the federal government could acquire such property through
"abandonment" or
"adverse possession." Any such action blocking access could not have
been lawful in
the first place and courts are not likely to allow the federal
government to profit from
illegal acts of its employees.
In conclusion, the Draft Report to Congress, while representing considerable effort and dedication by the Department of Interior, goes too far in trying to justify the abrogation or nonrecognition of R.S. 2477 rights-of-way. Should Congress adopt its erroneous findings and attempt to retroactively do away with existing R.S. 2477 rights-of-way, or attempt to pretend that many such rights-of-way do not exist in the first place, then there will be a great deal of litigation and a great deal of federal government liability could result.
Return to INDEX
1. Thus, the chart on Page 33 of the Draft Report to Congress is in error when it states that there must be "formal acceptance" by the state for there to be an R.S. 2477 right-of-way in California.
2. West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 532 (1848) (emphasis added).
3. Dows v. National Exchange Bank of Milwaukee, 91 U.S. 618, 637 (1875).