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 statute has been interpreted innumerable times over the 130
years since its passage by state and federal courts and by the
Department of Interior. These interpretations have consistently
outlined fundamental, core principles which have guided its application
over the years. In particular, the statute has been applied universally
by reference to state law. Furthermore, the definitions under state law
of terms such as "highway" and "construction " have always been
honored. In recent years, there has been a growing effort to ignore or
twist these clear precedents. A major recent example is the regulations
proposed several years ago by the Department of Interior. Even a casual
review of the precedent outlined here demonstrates conclusively that
they do not provide a fair treatment of this legal history and the
definitions which were relied upon for the 110 years that the offer
under RS 2477 was open. The following outline provides just a few
quotations from the vast body of administrative and court-made law and
the legislative history of this statute.
I. THE ROLE OF STATE LAW:
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).
These regulations were retained, virtually unchanged, for 110
years:
No application should be filed under R.S. 2477, as no action
on
the part of the Government is necessary. . . . Grants of
rights-of-way referred to in the preceding section become
effective upon the construction or establishment of highways, in
accordance with the State laws, over public lands, not reserved
for public uses. 43 C.F.R. 2822.1-1, 2822.2-1 (October 1,
1974)(See also, 43 C.F.R. 244.54 (1938); 43 C.F.R. 244.58 (1963).
In 1986, the Department recognized its duty to honor prior,
valid existing rights:
A right-of-way issued on or before October 21, 1976, pursuant
to then existing statutory authority is covered by the provisions
of this part unless administration under this part diminishes or
reduces any rights confered by the grant or the statute under
which it was issued, in which event the provisions of the grant
or the then existing statute shall apply. 43 U.S.C. 2801.4
(February 25, 1986).
Supplementary information supplied by the Department stated:
It was not the intent of the proposed rulemaking, nor is it
the
intent of this final rulemaking, to diminish or reduce the rights
conferred by a right-of-way granted prior to October 21, 1976. .
. . In addition, if questions should arise regarding the rights of a
right-of-way holder under a grant or statute, the earlier
editions of the Code of Federal Regulations on rights-of-way will
remain available to assist in interpretation of the rights
conferred by the grant or earlier statute. . . . In carrying out
the Department's management responsibilities, the authorized
officer will be careful to avoid any ction that will diminish or
reduce th erights conferred under a right-of-way grant issued
prior to October 21, 1976. 51 Fed.Reg. 6542 (February 25, 1976).
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
grant has been accepted by the "construction of highways. Wilkenson
v. Dept. of Interior of United States, 634 F.Supp. 1265,
1272 (D. Colo. 1986) (citation omitted).
State courts have also been consistent in their treatment of
R.S. 2477 rights-of-way:
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).
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
rights 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).
Federal courts have concurred:
The salient issue is whether the scope of R.S. 2477
rights-of-way
is a question of state or federal 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).. . . 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. Sierra Club
v.
Hodel 848 F.2d at 1080, 1083. (Citations omitted.)
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)).
"Under R.S. 2477, a right-of-way could be established by
public use under terms
provided by state law." Sierra Club v. Hodel,
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." Shultz
v. Department of Army, U.S., 10
F.3d at 655.
II. STATEMENTS OF THE 10TH CIRCUIT COURT OF APPEALS ON THE
IMPORTANCE OF STATE LAW
The United States Circuit Court of Appeals for the 10th Circuit,
commenting on "more
than four decades of agency precedent, subseqent BLM policy as
expressed in the BLM Manual,
and over a century of state court jurisprudence" on this issue:
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, an 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 rightholders, 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. Sierra Club v.
Hodel,
848 F.2d at 1082-1083.
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.
III. CONGRESSIONAL INTENT IN PASSING FLPMA
Debate leading up to the enactment of FLPMA, on a predecessor bill,
addressed
R.S. 2477 specifically. This bill contained the same terms which were
later incorporated into
FLPMA, providing that "All actions by the Secretary under this Act
shall be subject to valid
existing rights" and providing for the repeal of R.S. 2477.
Senator Stevens, of Alaska, expressed concern that rights to "de
facto public roads"
established across public lands and roads "that through
tradition, through usage, through the
passage of time, in fact, have become public access roads or highways"
would be jeopardized
by the repeal of R.S. 2477. 120 Cong. Rec. 22283-22284 (1974). Senator
Haskell, of Colorado,
speaking in favor of the legislation (S-424), stated: "if a strip
of land is being used for a
highway over public land in accordance with State law at the time of
enactment of this bill,
then that grant of right-of-way is preserved by reason of section 502
of the bill." Id. at
22284.
There can be no question that Congress intended, when it passed
FLPMA, that R.S. 2477
rights-of-way be interpreted in accordance with state law. In an
attempt to "make sufficient
legislative history," Senator Haskell referred specifically to
state case law, stating:
I am referring now, if the Senator would like, the citation is Koloen versus Pilot Mound Township, I believe it is, 33 North Dakota 529, it says:
"To constitute acceptance of congressional grant of right-of-way for highways across public lands there must be either user sufficient to establish a highway under the laws of the State, or some positive act proper authorities manifesting intent to accept."
In other words, a use or some positive act of proper
authorities
manifesting intent to use. This is the way I would apply this
one-sentence statute [R.S. 2477] enacted in 1866: either there
is a an actual existing public use, or there is a manifest intent
which could be put into action by an application to the
Department of the Interior, and they would say "yes." In other
words, it is a two-way proposition. Id.
It is also clear that it was an essential condition of the BLM
"organic act" that the full
rights under R.S. 2477, as well as other rights, were to be preserved.
Senator Haskell, in
support of the predecessor bill, said "I would like to take this
opportunity to reassure the
various users of the natural resources lands -- and these people
include those who graze
cattle, it includes people who mine, it includes people who use public
lands for recreation --
that none of their rights or privileges are being adversely affected."
Id. at 22280.
It is also clear that Congress understood that R.S. 2477 rights-of-way would not be limited to "significant" roads:
MR. STEVENS. Would the Senator from Colorado agree that if a
State has accepted an obligation to maintain a road or trail, if it
has partially constructed or reconstructed it, or has indicated an
exercise of its police authority by virtue of posting signs as to
the speed limits, for example, which demonstrate it is a public
highway - if the State has taken actions that would normally be
taken by a State in furtherance of its normal highway program,
and those roads were on such a right-of-way public lands,
would the Senator agree that we have no intent of wiping those
out, but those would be valid, existing rights under the one-sentence
statute the Senator mentioned previously?
MR. HASKELL. I agree with the Senator 100 percent. Id.
at
22284.
Furthermore, in response to a concern about "existing roads and trails from village to village" and about "dogsled trails," Senator Haskell stated:
I am not familiar with dogsled trails, but let me say I agree
with
the Senator that so long as the intent was for public use, then
the right-of-way was established at that time under that 1866
act. Id.
A review of that debate can leave no doubt that Congress intended
R.S. 2477 rights to
be exercised fully in accordance with state law after the passage of
the BLM "organic act."
IV. FLPMA EXPLICITLY PROTECTS PRIOR VALID EXISTING RIGHTS
The Federal Land Policy Management Act of 1976 (FLPMA) states:
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).
V. DEFINITIONS OF "HIGHWAY" AND "CONSTRUCTION"
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 term highway is the generic name for all kinds of public
ways, whether
they be carriage-ways, bridle-ways, footways, bridges, turnpike roads,
railroads, canals, ferries, or navigable rivers." Bouv. Law
Dictionary, Rowle's
Third Rev. p. 1438, Tit. Highway; Elliott, Roads and Streets, p. 1; 25
Am.Jur, 340. Parsons v. Wright, 27 S.E.2d 534
(N.C. 1943)
A highway is commonly defined as a passage, road, or street
which every
citizen has a right to use. . . . A highway includes every public
thoroughfare,
"whether it be by carriage way, a horse way, a foot way, or a navigable
river." Summerhill v. Shannon, 361 S.W.2d
271 (Ark. 1962).
"Roads" and "highways" are generic terms, embracing all kinds
of public ways,
usch as county and township roads, streets, alleys, township and plank
roads,
turnpike or gravel roads, tramways, ferries, canals, navigable rivers .
. . . Strange v. Board of Com'rs of Grant County,
91 N.E. 42 (Ind. 1910).
Highways, as they were originally developed, were for the
convenience and easy
passage of persons on foot, on horseback, in vehicles drawn by horses
or oxen,
and also for the transportation of commodities by the same means. They
were
open to unrestricted use by all persons. City
of Rochester v. Falk, 9 N.Y.S.2d
343 (1939)
The word "highway" as ordinarily used means a way over land
open to the use
of the general public without unreasonable distinction or
discrimination,
established in a mode porvided by the laws of the state where located.
Lovelace v. Hightower, 50 N.M. 50, 168 P.2d 864
(1946).
Travel and transportation of goods by wheeled vehicles is not
the only use to
which a highwya may be put. One walking or riding horseback, or
transporting
goods by pack horse, over a way which the public is constantly using ,
is a use
of such a way as a highway. Hamp v. Pend Oreille County,
172 P. 869, 870
(Wash. 1918).
"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).
Return to INDEX