RS 2477 is a statute adopted in 1866 to facilitate the settlement
of the West by encouraging
the development of a system of roads and trails. The name "RS 2477" is
an abbreviation of
"Revised Statute 2477." That name, in turn, comes from the placement of
the original law in a
reorganized version of the U.S. Code.
RS 2477 is a very short law, consisting of only one sentence. It
states, in its entirety, that " the
right of way for the construction of highways across public lands not
otherwise reserved for
public purposes is hereby granted." That right-of-way is a legitimate
property right, and,
consequently, carries with it a bundle of associated rights, including
the right to maintain the roads
and upgrade them under certain circumstances.
Once the grant was made, the federal government's interest in the
land actually containing the right
of way became that of the servient estate. That means that its rights
as owner of the underlying
land are still protected against undue or unnecessary damage, but it
cannot interfere with the
owner of the right-of-way exercising its bundle of rights.
These property rights are held on behalf of the public, usually by
the counties. In accepting the
property right-of-way, the local governmental unit also accepted a
legal obligation (and the
consequent legal liability) to maintain those rights-of-way to ensure
safe passage by the public.
RS 2477 was a self-executing law, meaning that when the requirements of the law were met, the property right was automatically conveyed from the federal government to the county. Indeed, there was never even a requirement that the county inform the federal government when it accepted the grant of a particular right-of-way. The specific actions which local governments took in accepting the grant vary from state to state and have been determined by each state's law.
State law can also determine such things as the width of the right
of way.
RS 2477 was repealed in 1976 by a law establishing a more comprehensive resource management framework for the Bureau of Land Management, the Federal Land Management and Policy Act, commonly referred to as "FLPMA." However, FLPMA specifically and clearly stated that all existing 2477 rights of way were not affected by the repeal of RS 2477 and remained valid. It contained in its Title V a new mechanism for granting rights-of-way from 1976 to the present.
So, while no new grants were made after 1976, all of those made
prior to that time were still valid
property rights of the counties.
The federal land management agency cannot determine whether the
claim is valid or not except for its administrative purposes. Under our
Constitution, only the courts can do that. Much of the recent
controversy surrounding the 2477 issue has been sparked by draft
regulations issued by the U.S.
Department of Interior which local governments and others claim try to
exceed the authority of
the Executive Branch under the Constitution as well as suffering from a
number of other serious
shortcomings as well. (Click
here for an introduction to the draft regulation issue.)
If, based on the documentation the county provides, a federal
agency recognizes the validity of a
2477 right of way claim, then it is bound by the right of the local
governmental unit to exercise its
bundle of rights. If it does not recognize the validity, then the
right-of-way holder can still exercise its right. Where a dispute
cannot be resolved, the issue goes to federal court for a
decision.
Counties can abandon 2477 rights-of-way, but usually must go through
formal procedures
specified in state law to do so. The lack of maintenance of the road
over a right-of-way has no bearing on the continuing
validity of the right-of-way. One of the bundle of rights of the local
governmental unit is to
maintain a safe right-of-way and even to upgrade it within limits.
Click
here
for a "2477" primer which briefly explains the various terms contained
in the law as well as giving the entire text of RS 2477.
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