Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers of Interest
CRS Report for Congress
Highway Rights of Way on
Public Lands: R.S. 2477
and Disclaimers of Interest
November 7, 2003
American Law Division
Congressional Research Service ˜ The Library of Congress
Highway Rights of Way on Public Lands:
R.S. 2477 and Disclaimers of Interest
A succinct provision in an 1866 statute known as “R.S. 2477" granted rights of
way across unreserved federal lands for “the construction of highways.” The
provision was repealed in 1976 by the Federal Land Policy and Management Act
(FLPMA), an act that also protected valid rights of way already established by that
time. What definitions, criteria, and law should be applied to confirm or validate
these R.S. 2477 rights of way has been controversial. The issues are important to
states and communities whose highway systems are affected. The issues are also
important because the rights of way may run either through undeveloped federal
lands that might otherwise qualify for wilderness designation or across lands that are
now private or within federal reserves (such as parks or national forests) created after
the highways might have been established.
Section 315 of FLPMA authorizes the Secretary of the Interior to issue a
“disclaimer of interest” if an interest or interests of the United States in lands has
“terminated by operation of law or is otherwise invalid.” A disclaimer is a recordable
document that can help remove a cloud from land title because it has the same effect
as if the United States had conveyed the interest in question. The Department of the
Interior has finalized amendments to existing regulations on disclaimers of interest
that allow states, state political subdivisions, and others to apply for disclaimers that
previously were time-barred. A recent Memorandum of Understanding (MOU)
between Utah and the Department of the Interior establishes an “acknowledgment
process” whereby R.S. 2477 rights of way on certain federal lands can be validated
and a disclaimer to them issued by the United States. Several other states have
requested negotiations to develop MOUs regarding R.S. 2477 rights of way.
The disclaimer regulation changes are controversial for many reasons; one of
which is that Congress in § 108 of P.L. 104-208 prohibited regulations “pertaining
to” R.S. 2477 from becoming effective without Congressional approval. The use of
disclaimers to acknowledge R.S. 2477 rights of way is also controversial because the
criteria that will be used to determine the validity of asserted R.S. 2477 claims are
not set out, and without clearly stated criteria and standards, it is not clear whether
the terms of § 315 have been met – whether a disclaimable interest of the United
States has terminated or not. Most agree that a resolution of R.S. 2477 validity issues
is desirable, but there is disagreement on standards and on whether and how the
Congress and the courts should be involved. H.R. 1639 in the 108th Congress would
authorize a process for determining the validity of R.S. 2477 claims and define
crucial terms for those determinations. A House-passed amendment to FY2004
Interior and Related Agencies Appropriations (H.R. 2691) would have prohibited
implementation of the disclaimer regulation amendments in certain federal
conservation areas, but was removed in conference. This report reviews the
disclaimer provision of § 315 of FLPMA, the Utah MOU, the R.S. 2477 grant to
construct highways and interpretation of it, the relationship of the new disclaimer
regulations to that statute and to the statutory prohibition against rules that “pertain
to” R.S. 2477, and H.R. 1639. It will be updated as events warrant; see CRS Report
RS21402 for information on recent events.
In troduction ......................................................1
Section 315 Disclaimers............................................7
Section 315 and Regulations.....................................7
Legislative History of §315 Disclaimers............................8
Quiet Title Act................................................9
Regulations “Pertaining To” R.S. 2477............................15
The Utah Memorandum of Understanding.............................18
R.S. 2477 Rights of Way...........................................21
Administrative and Judicial Interpretation of 1866 Act....................33
Role of State Law.........................................41
Is Construction Necessary to Comply with the Grant?............46
Scope of Rights of Way....................................52
Is R.S. 2477 Retrospective or Prospective?.....................54
Does R.S. 2477 Apply Only to Roads for Mining or
What Are Unreserved Lands?...............................56
Statute of Limitations......................................59
Current Congressional Actions......................................61
Highway Rights of Way on Public Lands:
R.S. 2477 and Disclaimers of Interest
A succinct provision in an 1866 statute known as “R.S. 2477" granted rights of
way across unreserved federal public lands:
And be it further enacted, That the right of way for the construction of highways1
over public lands, not reserved for public uses, is hereby granted.
This provision was repealed in 1976 by the Federal Land Policy and
Management Act (FLPMA), an act that also protected valid rights of way established
by that time. What definitions, criteria, and law should be applied to confirm or
validate the existence of these pre-1976 R.S. 2477 rights of way has been
controversial for over a decade. The issues are important to states and communities
whose highway systems are affected. Also, the rights of way may run either through
undeveloped federal lands that might otherwise qualify for wilderness designation
or across lands that are now private or within federal reserves (such as parks or
national forests) created after the highways might have been established.
Many such rights of way have not been controversial because their construction
and acceptance as highways was clear. Other asserted rights of way are controversial
either because their timely completion is not clear, the standards by which their
validity should be determined are debatable, or because of the location of the asserted
rights of way. The potential impacts of claimed R.S. 2477 rights of way on the
management of federal and non-federal lands and on state road systems could be2
significant. Validated roads could continue across private lands as well, possibly to
the surprise of current landowners.3 Still other rights of way may threaten water
1 Act of July 26, 1866, ch. 262, 14 Stat. 251, R.S. 2477, later codified until repeal at 43
U.S.C. § 932.
2 A Colorado committee of counties reportedly has indicated that thousands of miles of
rights of way should be claimed across over a million acres of federal lands, including
national parks, monuments, wilderness areas, and Indian reservations. DENVER POST,
August 3, 2003, at B-08. This article also asserts that the roads on federal lands would
continue across lands that are now private lands. Another article indicates that rights of way
would be claimed in Dinosaur National Monument, Browns Park National Wildlife Refuge
and the Vermillion Basin. FORT COLLINS COLORADOAN, July 24, 2003 at 1A.
3 The director of the San Juan Citizens Alliance in Colorado is quoted as saying: “That right
of way won’t just stop at your ranch fence. The jeeps and motorcycles will be coming right
through.” Theo Stein, County lobby to push road claims on federal land, DENVER POST,
August 3, 2003, at B-08. The potential for these old routes to be validated across private
quality if they pass through critical watersheds.4 On the other hand, others assert that
motorized access to the federal lands, which comprise about 44 percent of Utah, is
important for ranching, recreation, mining, and other economic activities deemed
vital to rural Utah and that the roadways will promote economic prosperity
generally.5 In commenting on a bill in the 104th Congress that would have legislated
a validation process very different from that proposed in regulations, Sen. Hatch
[T]his matter is critical to communities and citizens in the rural West. In many
cases, these roads are the only routes to farms and ranches; they provide
necessary access for schoolbuses, emergency vehicles, and mail delivery. The
Interior Department regulations would significantly confound transportation in
the Western States, jeopardizing the livelihoods of many citizens and possibly6
their health and safety as well.
On January 6, 2003 the Department of the Interior published new final
regulations on “disclaimers of interest.”7 A disclaimer is a recordable document in
which the United States declares that it does not have a property interest or interests
in lands. The issuance of a disclaimer can help remove a cloud from land title
because it has the same effect as though the United States had conveyed any interest
it has. On April 9, 2003, the Department of the Interior and Utah entered into a
Memorandum of Understanding (MOU) to establish a process to acknowledge as
valid certain R.S. 2477 highway rights of way within that state and to disclaim the
interest of the United States in valid rights of way. Apparently, this means that the
United States would disclaim its interest in the highway easement, but not title to the
The new disclaimer regulations were issued under § 315 of the Federal Land
Policy and Management Act of 1976 (FLPMA),8 one part of which authorizes the
issuance of disclaimers if an interest or interests of the United States in lands has
“terminated by operation of law or is otherwise invalid.” The amended disclaimer
regulations at 43 C.F.R. Part 1860, Subpart 1864, allow states, state political
subdivisions, and others to apply for disclaimers of interest by the United States,
lands has raised concerns of landowners of various political persuasions, both because they
feel they may lose a property interest without compensation, or because they may be unable
to exclude the public from property they thought was private. Theo Stein, Old law pits
landowners, ‘road’ users, DENVER POST, August 19, 2003, at B-01.
4 Molly Villamana, Public Lands: Utah Prepares to Publish First RS 2477 Claims,
GREENWIRE, August 11, 2003.
5 See, e.g., Brent Israelsen, Activists Seek Data on Roads Suit, THE SALT LAKE TRIBUNE,
October 26, 2001; and Mark Havnes, Leavitt Asks for Moderation in Debate over Roads on
Wild Lands, THE SALT LAKE TRIBUNE, August 7, 2003, at B2.
6 141 CONG. REC. 34507 (November 27, 1995).
7 68 Fed. Reg. 494 (January 6, 2003). The regulations became effective on February 5,
8 P.L. 94-579, 90 Stat. 2770, 43 U.S.C. §§ 1701, 1745.
regardless of whether they are the property owner of record, as was required by the
previous regulations. The amended regulations provide exceptions to the 12-year
statute of limitations that applied to all applications under the previous regulations
and that would also apply to all plaintiffs, except states, if they were to pursue claims
in court under the Quiet Title Act.
Some comments on the proposed changes to the disclaimer regulations
expressed concern that disclaimers would be used to confirm many more R.S. 2477
rights of way through that means.9 The explanatory materials accompanying the final
regulations state that “[a] significant number of comments asked about the
relationship between the proposed rule and R.S. 2477,” and conclude that § 315
disclaimers are appropriate in the R.S. 2477 context if their issuance would help
remove a cloud on the title to lands or interests in lands arising from unrecorded
rights of way.10
The explanatory materials go on to discuss that the rule does not provide
standards for recognizing, managing, or validating R.S. 2477 rights of way and
therefore do not violate § 108 of P.L. 104-208, which prohibited rules “pertaining”
to recognition of R.S. 2477 rights of way.11 By what process R.S. 2477 rights of way
will be validated and by applying what criteria are controversial issues. For years,
property disputes involving claims to federal lands were resolved by the Congress in
individual legislation or by the courts under the Quiet Title Act. Disclaimers have
been used when there is no dispute that the United States does not own a property.
The issuance of disclaimers spares parties the time and expense of going to court
under the Quiet Title Act. However, given the significant issues over what law
applies to R.S. 2477 rights of way and what constitutes lawful R.S. 2477 validity
criteria, use of disclaimers as part of a process for validating such rights of way
without congressional or judicial guidance on how such claims should be evaluated
and resolved may generate further controversy. The Administration asserts that
disclaimers will only be used in reference to “obvious” R.S. 2477 claims12 or claims
that “satisfy the statutory requirement of ‘construction’ and ‘highway’ under almost
any interpretation of those statutory terms.”13 However, as will be discussed, some
of the terms of the Utah MOU may be controversial – e.g. it expressly equates
“highway” with “road,” possibly broadening the rights of way that may qualify by
eliminating one debatable element of the 1866 grant from consideration.
The possible relationship between the new disclaimer regulations and R.S. 2477
determinations is important because Congress in § 108 of P.L. 104-208 stated that
9 68 Fed. Reg. 496.
10 68 Fed. Reg. 496.
12 Letter from Matthew J. McKeown, Associate Solicitor, Department of the Interior, to
Susan D. Sawtelle, Associate General Counsel, U.S. General Accounting Office, July 15,
13 Memorandum to BLM State Director, Utah from Deputy Director of BLM, June 25, 2003,
providing guidance for implementing the Utah MOU. Available from the Department of the
Interior or the author’s files.
no rules “pertaining to” recognition or validity of R.S. 2477 rights of way could be
effective unless authorized by Congress. Explanatory materials published with the
amended disclaimer rules assert that the issuance of federal disclaimers is completely
separate from determining the validity of claims of highway rights of way under R.S.
2477. But, apparently, disclaimers could be an essential part of a new process for
finalizing claims found to be valid through application of a variety of administrative
standards. The MOU with Utah establishes an “acknowledgment process” whereby
R.S. 2477 rights of way claimed by that State can be validated and disclaimers to the
rights of way issued by the United States. Some counties in Utah and one county in
California, and the states of Alaska, Colorado, Idaho, Oregon, have indicated interest
in developing separate MOUs regarding R.S. 2477 rights of way, and other states
may follow.14 Any additional MOUs may or may not be similar to that with Utah.15
Whether this potential for disparate approaches to validating R.S. 2477 rights of way
comports with the policies set out in FLPMA to retain the remaining public lands and
to establish uniform procedures for the management and disposal of the public
lands16 raises other issues. Additional questions may arise even if all validation
agreements prove to be uniform.
Neither the Utah MOU nor the supplemental BLM guidance for implementing
it sets out the criteria that will be used by the United States to determine the validity
of asserted R.S. 2477 claims. The articulation of criteria and the definitions of key
terms are central issues that have generated controversy in the past. For many years
as the West was being settled, there was little attention paid by the United States to
R.S. 2477 grants. Meanwhile, state courts applying state laws established their own
standards by which to judge whether a grant had been accepted by each state for
public maintenance and liability. In some instances, state law or judicial
interpretation went beyond determining when a right of way was accepted by a state
or county for those purposes to also articulating what constituted “construction” or
a “highway” for purposes of determining when the federal grant was completed
However, these cases typically did not involve the federal government as a party, and
after the repeal of the 1866 Act in 1976, attention was increasingly focused on the
elements of the federal grant: the “construction” of “highways” over “public lands”
“not reserved” – as matters of federal law.
Congress has addressed the R.S. 2477 controversy several times. In 1991 the
House passed H.R. 1906, a bill that would have imposed a cutoff date for claims and
specified how the Department of Interior was to process them, but no Senate action
was taken. Then, in conference report language on P.L. 102-381, Congress deleted
14 The Alaska context presents many special circumstances, both because of climatic and
terrain conditions and because much of the state was subject to land withdrawals for many
years. Possible solutions for the special needs of Alaska that may not be adequately met by
the right of way provisions of Title XI of the Alaska National Interest Lands Conservation
Act and Title V of FLPMA present issues beyond the scope of this paper.
15 One press article reports that Alaska has sought an MOU that would recognize 14 of 650
trails in Alaska, use of which might have been by foot, horse, dog sled, snowmachine, off-
road vehicle or other vehicular traffic. ANCHORAGE DAILY NEWS, September 2, 2003, at
16 43 U.S.C. § 1701(a)(1) and (10).
a prohibition on using funds to process R.S. 2477 rights of way in favor of directing
the Department to prepare a report on R.S. 2477, and to develop validity criteria that
are “consonant with the intent of Congress both in enacting R.S. 2477 and FLPMA,
which mandated policies of retention and efficient management of the public
lands.”17 The Department’s report was completed in June, 1993. One of the
recommendations in the report was that regulations be promulgated to establish a
single uniform system for validating R.S. 2477 claims, and Secretary Babbitt
proposed such regulations in 1994.18 However, these proposed regulations were
controversial19 and elicited congressional prohibitions against new regulations.20
These were followed by the prohibition in § 108 of P.L. 104-208 (an appropriations
act), against rules “pertaining to” R.S. 2477 becoming effective until approved by
Congress.21 Similar language had been proposed for the Interior Appropriations Act
17 H.R. Rep. No. 102-901 at 71 (1992) states:
"Amendment No. 155: Deletes House proposed language that would have prohibited
the use of funds to process rights of way claims under section 2477 of the Revised Statutes,
as proposed by the Senate.
The managers agree that by May 1, 1993, the Department of the Interior shall submit
to the appropriate committees of the Congress a report on the history of rights of way
claimed under section 2477 of the Revised Statutes, the likely impacts of current and
potential claims of such rights of way on the management of the Federal lands, on the access
to Federal lands, private lands, State lands, Indian and Native lands, on multiple use
activities, the current status of such claims, possible alternatives for assessing the validity
of such claims and alternatives to obtaining rights of way, given the importance of this study
to the Western public land States. In preparing the Report the Department shall consult with
Western public lands States and other affected interests.
The managers expect sound recommendations for assessing the validity of claims to
result from this study, consonant with the intent of Congress both in enacting R.S. 2477 and
FLPMA, which mandated policies of retention and efficient management of the public
Such validity criteria should be drawn from the intent of R.S. 2477 and FLPMA.
The managers further expect that any proposed changes in use of a valid right of way
shall be processed in accordance with the requirements of applicable law."
18 59 Fed. Reg. 39,216 (August 1, 1994).
19 Some felt that the regulations imposed too great a burden on the states claiming R.S. 2477
rights of way, or disagreed with the definitions of crucial terms. See Appendix I of this
20 Section 349 of P.L. 104-59, 109 Stat. 568, 617-618 (November 28, 1995) stated:
“Notwithstanding any other provision of law, no agency of the Federal Government may
take any action to prepare, promulgate, or implement any rule or regulation addressing
rights-of-way authorized pursuant to section 2477 of the Revised Statutes (43 U.S.C. 932),
as such section was in effect before October 21, 1976.” Section 110 of P.L. 104-134, 110
Stat. 1321-177 (April 26, 1996), extended the prohibition over Fiscal Year 1996 and stated
that “None of the funds appropriated or otherwise made available by this Act may be
obligated or expended by the Secretary of the Interior for developing, promulgating, and
thereafter implementing a rule concerning rights-of-way under section 2477 of the Revised
21 Section 108 of P.L. 104-208, 110 Stat. 3009, 3009-200 (September 30, 1996).
for FY1998 (P.L. 105-83), but was deleted in reliance on an Opinion of the
Comptroller General that § 108 was permanent law.22
Several bills addressing R.S. 2477 were introduced in 1995 and 1996, including
S. 1425, which would have put the burden of disproving validity of claims on the
United States and directed that determinations be made by applying state law. Many
opposed these provisions too, and no position garnered sufficient support to enact a
bill. As part of the compromise in the 104th Congress, the Administration pledged
to send a legislative proposal to the Hill, and a proposal was sent in August of 1997,
but no legislation based on it was introduced.
On January 22, 1997, Secretary Babbitt revoked a 1988 Policy on R.S. 2477 and
put in place an interim policy that directed that R.S. 2477 determinations be
postponed unless necessitated by compelling circumstances, thereby giving Congress
more time to resolve the issues. Language was added to the FY1997 Supplemental
Appropriation bill to nullify the 1997 policy and to again require that state law be
used in evaluating R.S. 2477 claims; however, this language was eliminated after the
bill was vetoed. Since that time very few administrative determinations have been
completed, and disputed claims have been addressed in the courts under the Quiet
Title Act. Now, with the Utah MOU as precedent, new administrative
“acknowledgment processes” could use the amended disclaimer regulations to
validate R.S. 2477 rights of way under as- yet-unstated criteria.
R.S. 2477 issues may be suitable for resolution by Congress because so many
interests could be affected, and because the law and standards that should be applied
are debatable. H.R. 1639 in the 108th Congress, again proposes a legislated system
for evaluating and determining claims, and defines crucial terms. In addition, the
House approved an amendment to the FY2004 DOI Appropriations bill (H.R. 2691),
that would have prohibited implementation of the amendments to the disclaimer
regulations in National Monuments, Wilderness Study Areas, or units of the National
Park System, National Wildlife Refuge System, or the National Wilderness
Preservation System. This language was adopted instead of a more general
prohibition on implementation. The Senate bill, as reported, did not contain a
provision on disclaimers and the provision was eliminated in conference. If there is
no legislated resolution of R.S. 2477 issues, the courts will continue to consider
disputed claims as they arise, and use of the new acknowledgment/disclaimer process
may also be challenged.
This report discusses the disclaimer provision of FLPMA, the recent
amendments to the disclaimer regulations, and the Utah MOU. It also provides
background on the R.S. 2477 grant to construct highways, administrative and judicial
interpretation of it, and several questions involving its interpretation that are not
settled. The relationship of the amended disclaimer regulations to that statute and to
the prohibition against rules that “pertain to” R.S. 2477 is also discussed. Finally,
H.R. 1639 and other actions in the current Congress also are discussed. This report
will be updated as circumstances warrant; see CRS Report for Congress RS21402:
22 See H. R. Rep. 105-337 at 74 (1997), citing Opinion of the Comptroller General B-
Federal Lands, “Disclaimers of Interest,” and R.S. 2477, for a discussion of recent
Section 315 Disclaimers
Section 315 and Regulations
Section 315 of FLPMA authorizes the Secretary of the Interior to use
disclaimers in certain circumstances, and reads in part:
After consulting with any affected Federal agency, the Secretary is
authorized to issue a document of disclaimer of interest or interests in any lands
in any form suitable for recordation, where the disclaimer will help remove a
cloud on the title of such lands and where he determines (1) a record interest of
the United States in lands has terminated by operation of law or is otherwise23
invalid; or ....
When a party formally disclaims an interest in real property, the result is to help
clear title to the property interest that is the subject of the disclaimer. Section 315(c)
states that a recordable federal disclaimer of interest has an effect equivalent to a
quitclaim deed.24 A part of the regulations that was not amended adds that although25
a disclaimer does not actually convey title (presumably because the disclaimer
indicates there is no title interest of the United States to be conveyed), a disclaimer
may estop the United States from later asserting a claim to the lands. Unchanged
regulations also state that the purpose of the procedure is to eliminate the necessity
for court action or private legislation in certain circumstances, including when there
is a cloud on the title to the lands that is attributable to the United States:
The purpose of a disclaimer is to eliminate the necessity for court action or
private legislation in those instances where the United States asserts no
ownership or record interest, based upon a determination by the Secretary of the
Interior that there is a cloud on the title to the lands, attributable to the United
States, and that:
(1) A record interest of the United States in lands has terminated by operation of
law or is otherwise invalid; or ... [additional language reflecting the § 31526
language on disclaimers involving submerged lands].
These provisions of the disclaimer regulations were not changed. However, the
former regulations limited those who could apply to use the procedure to “any
23 43 U.S.C. § 1745(a). Although attention has focused on the use of disclaimers in
connection with R.S. 2477 claims, disclaimers may also be used to disclaim title to lands
beneath navigable waters, some of which might also be controversial.
24 43 U.S.C. § 1745(c).
25 43 C.F.R. § 1864.0-2(b).
26 43 C.F.R. § 1864.0-2(a). This language reflects similar statements in the legislative
history of § 315. See, e.g. S. Rep. 94-583 at 50 (1975).
present owner of record,”27 a limitation that does not appear in the statute or in the
amended regulations. Further, the previous regulations required denial of an
application for a disclaimer if more than 12 years had elapsed since the owner knew
or should have known of the alleged claim attributed to the United States.28 The
amended regulations allow any entity to file an application for a disclaimer, and also
provide that although most applicants must file within 12 years, this time limitation
does not apply to states.29 The explanatory materials indicate that this is to make the
§315 regulations consistent with the Quiet Title Act (QTA). As will be discussed,
the QTA is the exclusive vehicle for resolving title disputes with the United States.
It contains a 12-year statute of limitations, but “states,” as narrowly interpreted in the
QTA context, are excepted from the limitation. The new regulations add a broader
definition of “state” that includes states in the narrow sense, and also political
subdivisions of a state, “any of its creations,” and “other official local governmental
entities.”30 This language is not elaborated on, but appears to include any
independent commission or body a state (or even possibly a county) might create.31
Because all those who fit within this definition of “state” are exempted from the 12-
year statute of limitations under the new disclaimer regulations, these provisions may
allow many governmental entities that would have been precluded previously from
seeking an administrative disclaimer and who are also currently precluded from
initiating a QTA action in court to now seek an administrative disclaimer.
Although there is no legal requirement that a § 315 administrative disclaimer
process parallel the QTA, the amended regulations purport to reflect and be
consistent with the QTA.32 If the § 315 disclaimer process is viewed as completely
separate from the QTA, expanding those who are not time-barred from requesting a
disclaimer could be beneficial because disclaimers are to be used in situations where
the United States has no interest in a property, and hence provides a means of
clearing up unnecessary clouds on title without the time and expense of judicial suits
under the QTA. However, neither Congress nor the courts have definitively clarified
the criteria and law for determining whether and when an interest of the United States
in a right of way might have “terminated or is otherwise invalid” within the meaning
of § 315. Disclaiming R.S. 2477 claims, therefore, may be subject to challenge in
some circumstances, unless criteria and standards are clarified.
Legislative History of §315 Disclaimers
The legislative history of FLPMA sheds little light on the intended uses and
scope of § 315. FLPMA is a complicated and detailed statute that developed over
several years to consolidate and modernize the statutes governing the remaining
27 Former 43 C.F.R. § 1864.1-1(a).
28 43 C.F.R. 1864.1-3(a)(1)(2002).
29 43 C.F.R. § 1864.1-3(a).
30 43 C.F.R. § 1864.0-5(h).
31 A computer search of the U.S. Code finds no instance where Congress has enacted a
similar definition of “state.”
32 68 Fed. Reg. 495, 501 (January 6, 2003).
public domain lands managed by the Bureau of Land Management, and to establish
express policies for their management. One policy expressly urges the retention of
the remaining public domain lands and another expressly requires “uniform
procedures” for any disposal of public land.33
In the 94th Congress, which enacted FLPMA, §212 of the Senate bill, S. 501,
and previous House bills34 authorized disclaimers only if the title of the United States
had terminated “by operation of law”– the section lacked the additional language “or
is otherwise invalid.” The Senate report indicates that the Secretary is to be given
new authority to issue a document “showing that the United States has no interest in
certain lands” that would have the legal effect of a quitclaim deed, and that this
would “eliminate the necessity for court action or private relief legislation in those
cases where the United States asserts no ownership or interest and would thus result
in a saving of time and money for both the Government and private parties.”35
Section 208 of the House bill, H.R. 13777, contained the “or is otherwise invalid”
language and also the express language on disclaimers having the effect of a
quitclaim deed, but there was no elaboration in the report on the additions,36 and no
explanation as to why the broader House language ultimately passed.37
The amendments to the disclaimer regulations broaden the circumstances in
which disclaimers may be used. Some expansion might be warranted by
practicalities – e.g. some instances might involve parties who are not the title holder
of record (for example, if there were a mistaken survey that erroneously showed the
United States to hold title to a strip of land). But were there any implicit limits on
how disclaimers could be used? In interpreting R.S. 2477, a court might look to the
plain meaning of that statute, or, if ambiguities are perceived, and in the absence of
clarification by Congress, a court might look to other provisions and to the history
of title disputes.
Quiet Title Act
Historically, it was difficult to correct title problems involving the United States.
The United States, as the federal sovereign, is immune from suit, except to the extent
it may waive its sovereign immunity, and one cannot “adversely possess” property
against the United States and thereby obtain title. Typically, special acts of Congress
were used to clear up title problems.38 Some lawsuits attempted to avoid the
sovereign immunity problem by suing an officer of the United States, rather than the
33 43 U.S.C. § 1701(a)(1) and (10) respectively.
34 See, e.g., § 212 of H.R. 5622 (94th Cong.); § 212 of S. 1292 (94th Cong.).
35 S. Rep. 94-583 at 50-51 (1975).
36 H.R. Rep 94-1163 (1976).
37 H.R. Rep. 94-1724 (1976).
38 In addition, for years the General Land Office issued letters disclaiming title to lands, a
practice without statutory authorization, but one that was “certainly acquiesced in by the
Secretary of the Interior” and found to be binding on the government. Soda Flat Co. v.
Hodel, 670 F. Supp. 879, 887-889 (E.D. Cal. 1987).
United States itself. These “officer suits” were eliminated by the enactment of the
Quiet Title Act (QTA) in 1972,39 which the Supreme Court has held to be the
exclusive means by which adverse claimants can challenge the United States’ title to
real property in court and controverted title claims can be resolved.40 There has
always been a tension between the enabling of suits to clear up title problems on the
one hand and the cabining of those suits in order to maintain parameters on the
waiver of sovereign immunity on the other hand. As a result, the Supreme Court has
said that waiver of sovereign immunity in the QTA is to be construed narrowly in
favor of the United States.41
Except as to states, the QTA bars suits not filed within 12 years of the time an
action accrues, and an action is deemed to have accrued on the date a plaintiff “knew
or should have known of the claim of the United States.”42 The Block case held that
states were subject to the statutory 12-year limitation on bringing suits under the
QTA, but in 1986 Congress subsequently provided that states are not generally
subject to that limitation (though in some circumstances they are).43 Recent cases
have held that the exception for states is to be interpreted narrowly, such that counties
and other subdivisions of a state may not avail themselves of this exception to the
QTA.44 The new disclaimer regulations contrast with the QTA in this regard by
including a broad new definition of “state” that includes many entities that would be
time-barred from contesting title under the QTA and would have been time-barred
from seeking disclaimers under the previous regulations. The administrative
disclaimer process and its regulations are separate from judicial QTA actions, but,
as will be discussed, the new disclaimer regulations purport to be consistent with the
QTA, yet differ significantly in this crucial respect.
The Ninth Circuit has held that two conditions must exist before a district court
can exercise jurisdiction over an action under the QTA: (1) the United States must
claim an interest in the property at issue (and it need not necessarily be adverse to the
interest asserted by the plaintiff); and (2) there must be a disputed title to real
property. In the R.S. 2477 context, even if the United States conceded the validity
of a right of way, the United States would retain an interest in the property – at least
the servient estate over which the easement runs.45 In the same litigation, the Ninth
Circuit also held that a third party may claim a title interest on behalf of the United
States so long as that claim results in a cloud on the title of the plaintiff.46 However,
39 P.L. 92-562, 86 Stat. 1176, 28 U.S.C. § 2409a.
40 Block v. North Dakota, 461 U.S. 273 (1983).
41 Id. at 287.
42 28 U.S.C. § 2409a(g).
43 P.L. 99-598, 100 Stat. 3351 (1986).
44 See, e.g., Calhoun County v. United States, 132 F.3d 1100, 1103 (5th Cir. 1998); Hat
Ranch, Inc. v. Babbitt, 932 F. Supp. 1 (D. D.C. 1995).
45 The United States could, of course, also have conveyed that servient estate in any
46 Leisnoi v. United States, 170 F.3d 1188 (9th Cir. 1999); 267 F.3d 1019 (9th Cir. 2001).
if the United States disclaims the contested interest, that is likely to end the suit under
The QTA was enacted before FLPMA, but also refers to disclaimers. The
statute provides that in a QTA lawsuit, the United States may disclaim all interest in
the “real property or interest therein” at any time prior to the actual commencement
of the trial regarding the property in question and if that disclaimer is confirmed by
order of the court, further jurisdiction of the court over the title dispute ceases unless
there is an independent ground for jurisdiction.47 There are few cases involving QTA
disclaimers, but they indicate that usually confirmation of a disclaimer by a court is
a “formality.”48 However, some cases have indicated that a court might refuse to
confirm a disclaimer of interest in some circumstances, e.g. if a disclaimer was not
made in good faith.49
The relationship of the filing of a disclaimer by the United States in a QTA suit
to other possible grounds for action against the United States is not clear, but a
disclaimer may not be dispositive of other causes of action even if it may terminate
the QTA suit.50
How courts might view the use of § 315 disclaimers as part of an administrative
process for validating R.S. 2477 rights of way is difficult to predict, and whether and
47 28 U.S.C. § 2409a(e).
48 Lee v. United States, 629 F. Supp. 721 (D. Alaska 1985)(amended opinion), aff’d 809
F.2d 1406 (9th Cir 1987), cert. denied 484 U.S. 1041 (1988).
49 LaFargue v. United State, 4 F. Supp. 2d 580 (E.D. La. 1998). In LaFargue, however, the
United States had conveyed the property interest in question (a pipeline easement) after suit
was filed, and the court seems to have concluded that § 2409a(e) did not remove theth
jurisdiction of the court either because in the 5 Circuit the time of any jurisdictional inquiry
was the date a complaint was filed, or because although the United States characterized its
action as a disclaimer, the court did not find a quitclaim conveyance to be a disclaimer
contemplated by § 2409a. Other courts have indicated that the circumstances in which a
disclaimer is issued may be considered: arguably, a disclaimer must be made in good faith
and not with intent to “whipsaw” a plaintiff or avoid a resolution of the title dispute, or a
court may refuse to confirm a disclaimer. See Lee v. United States, supra, and W.H. Pugh
Coal Co. v. United States, 418 F. Supp. 538, 539 (E.D. Wis. 1976).
50 See Leisnoi, Inc. v. United States, 313 F.3d 1181, (9th Cir. 2002) in which the court
affirmed the decision of the district court that the filing of a disclaimer, which the court
confirmed, deprived the district court of further jurisdiction and it dismissed as moot the
motion of third party, Stratman, to intervene. Despite the fact that there arguably were
grounds to question the propriety of the disclaimer, the appellate court stated that the
decision whether to file a disclaimer was entirely the prerogative of the United States.
However, the court also noted that the remaining challenges by Stratman to the merits of the
district court’s judgment were beyond the court’s jurisdiction in the appeal from a denial ofth
intervention. Another court characterized Donnelly v. United States, 850 F. 2d 1313 (9 Cir.
1988) as holding that “while the United States’ disclaimer divested the court of jurisdiction
over the Quiet Title Act claim, it did not divest the court of jurisdiction over APA-based
claims.” Camp v. Bureau of Land Management, 17 F. Supp. 2d 1167, n. 2 1171 (D. Or.
1998). The court noted at 1170 that there was no indication that the disclaimer in that case
was “invalid or otherwise not in good faith.”
on what grounds a court might scrutinize a disclaimer issued under §315 are issues
beyond the scope of this report.
Many states enacted laws that required counties to determine which roads
(including highways that were constructed on unreserved federal lands) were
accepted for public use and maintenance (and liability).51 Therefore, the status of
many roads was clear well before the 1976 repeal of R.S. 2477. The status of others
might not be as clear. “Roadless” reviews and other actions may have begun the 12-
year statute of limitations period under the QTA and the previous disclaimer
regulations, such that more than 12 years have now passed. (See the section of this
report on statute of limitations issues.) If so, the amendments to the disclaimer
regulations, by excepting states from the statute of limitations and broadly defining
“state,” could work a significant change with respect to the ability of counties and
governmental entities to raise R.S. 2477 claims – enabling those claimants to now
pursue claims administratively in instances where they would not have been able to
do so before the amendments.
The original § 315 regulations reflect some of the elements of the QTA (see,
e.g., the references to security interests, water rights, or Indian lands that are not in
FLPMA, but are in QTA52), and the materials accompanying the new regulatory
changes refer to making the FLPMA disclaimers consistent with the QTA. As
discussed, the original regulations barred all claims brought 12 years after the claims
had accrued. The amended regulations broaden those who can apply for FLPMA
disclaimers and avoid the 12-year limitation – significant departures from the QTA.
The new § 315 regulations establish a new administrative forum for establishing R.S.
2477 rights – a forum that need not parallel the QTA, but which may be
controversial, both because the standards that will or should govern the determination
of the validity of such claims are unclear (and therefore whether the United States
does or does not have an interest in a particular right of way is unclear), and because
the consequences of recognition of R.S. 2477 claims can be so significant to the
surrounding federal lands and communities.
Other issues may also be raised. Section 315 authorizes disclaimers of the
“record title” of the United States in the property being disclaimed, and it can be
asked what the “record title” of the United States is in the context of R.S. 2477
disclaimers. For most of the West, it appears that the record title of the United States
would be the title to the public domain lands obtained by the United States through
relevant treaties. That title would appear to consist of all the property rights
encompassed in full fee title. Other questions are – given that the record title of the
United States usually is full fee title – whether less than a full title interest may be
disclaimed under § 315 at all, and whether the rights of way under R.S. 2477 are such
51 See, e.g. 1877 Laws of Wyo. p. 135 and 1886 Laws of Wyo., ch. 99; Ariz. Rev. Stat.s, §§
2736, 2760 (1887); Idaho Code, §§ 40-501 (pre-1985), 31-805; Mt. Code Ann. § 7-14-2101
(2001); South Dakota Codified Laws, §§ 31-3-1 and 31-3-2 (1984 Rev.).
52 43 C.F.R. § 1864.1-3.
Section 315 authorizes the Secretary to issue a “document of disclaimer of
interest or interests” in any “lands.” As a general matter, “interest” could mean a
general focus of human attention, or it could be used to refer to a right, title, or legal
share in real property.53 From the rest of the section, its purpose, and the references
to recordation and to “record interest,” it seems clear that property interests are the
subject of the section. Furthermore, by referring to disclaiming “an interest or
interests,” it appears that less than a full fee title can be disclaimed under § 315 in
appropriate circumstances. For example, given the complex history of mineral
reservations, the United States in some circumstances may wish to disclaim the
mineral estate.54 In addition, many statutes have authorized the acquisition of, or
grants or conveyances of various types of less-than-fee “interests” in lands, including
rights of way or easements, and the reference in § 315 to “an interest or interests in
lands” seems to contemplate that the United States might, in suitable circumstances,
disclaim these interests as well.
R.S. 2477 appears to grant an easement across the federal lands, and easements
are a recognized property interest.55 Considering that § 315 states that “a record
interest of the United States may be disclaimed if it has terminated by operation of
law or is otherwise invalid,” it may be argued that it is only easements to which the
United States has a record interest that can be disclaimed. For example, if the United
States had at some time acquired an access easement across private lands for a
particular use or purpose, but never in fact used it for that purpose, thereby raising
the question of whether the easement had terminated, this could be characterized as
a situation where there was a cloud on the title of the underlying land “attributable
to the United States that a disclaimer of its record interest could help remove.”56
In the context of R.S. 2477 rights of way, however, the “record title” of the
United States appears to be the full fee interest obtained by the United States when
it acquired the western territories. Therefore, if the United States were to disclaim
an R.S. 2477 easement interest, the United States might be said to be disclaiming
only one part of its record title (i.e. an interest) – a part that would have to be
validated and surveyed in order to be described legally in order to be able to disclaim
a recordable interest. It could be argued on the one hand that this is not the kind of
disclaimer situation contemplated by § 315 because the interest being disclaimed is
not the “record interest” of the United States.
On the other hand, it could be argued that the traditional way of envisioning
property rights is to say that fee title is like a bundle of sticks, each of which
represents some aspect of ownership and enjoyment, some or all of which may be
conveyed. In the context of R.S. 2477 rights of way, the United States granted away
53 Black’s Law Dictionary 812 (6th ed. 1990).
54 See the second example of a disclaimer submitted with the letter to Susan D. Sawtelle,
55 25 AM. JUR. 2D Easements and Licenses in Real Property § 1; 2 George W. Thomson,
Thompson on Real Property § 315 (1980); Sierra Club v. Hodel, 848 F.2d 1068, 1083 (10th
56 43 C.F.R. § 1864.0-2(a).
one of the sticks in the property bundle – a highway easement– a “dominant” interest
to use the underlying federal lands for a highway right of way, and the United States
retained the “servient” estate – the rest of the bundle of sticks – over which the right
of way would run. Under this line of argument, the United States would be
disclaiming the easement interest it previously granted.
No examples of either a disclaimer of an easement interest in general or of any
disclaimers involving R.S. 2477 have been provided by the Department of the
In terior. 57
Section 315 states that disclaimers may be used when it will “help remove a
cloud on the title” of lands where a record interest of the United States has terminated
“by operation of law.” In the R.S. 2477 context, the Congress enacted an offer of a
grant, but in some instances whether as a factual matter (rather than by operation of
law) the grant was adequately and lawfully accepted and completed is unclear. This
may be viewed as a question of whether, based on actions taken by parties other than
the United States (as opposed to those “attributable to the United States”), title ever
left the United States – a question that depends on both the facts of each case and on
the criteria chosen to answer the question. If facts remain in dispute and the legal
criteria applied are not clarified by rule-making, Congress, or the courts, some would
argue that the QTA may be the more appropriate vehicle.
Certain policies of FLPMA may also caution against the use of disclaimers in
the R.S. 2477 context at the current time. Congress itself has called attention to some
of the FLPMA policy concerns. When Congress directed DOI to submit a report to
Congress on R.S. 2477 issues, the committee report directed that validity
determinations were to be “consonant with the intent of Congress both in enacting
R.S. 2477 and FLPMA, which mandated policies of retention and efficient
management of the public lands.”
One of the major policy changes of FLPMA was to put in place a policy of
retention of the remaining federal lands, unless as a result of the planning processes
it is determined that disposal of a particular parcel will serve the “national interest.”58
“Uniform procedures” for any disposal of public land also are required.59 On the one
hand, it could be argued that the issuance of a disclaimer is not a conveyance, that the
R.S. 2477 rights of way were “disposed of” long ago, and therefore , these FLPMA
policies are not implicated by disclaimers of any interest of the United States in the
rights of way now. On the other hand, given the controversy surrounding the
appropriate standards to be applied to validating such rights of way, some may
57 The Department of the Interior has produced some examples of disclaimers that involved
less than a full fee interest, but none that disclaims a right of way. The Department has
provided examples of disclaimers of the reversionary interest of the United States in
conditional rights of way.
58 43 U.S.C. § 1701(a)(1).
59 43 U.S.C. § 1701(a)(10).
advocate that a conservative interpretation of the use of §315 is appropriate.60
FLPMA requires that “in administering public land statutes and exercising
discretionary authority granted by them,” the Secretary is to “establish comprehensive
rules and regulations after considering the views of the general public ....”61 The
Secretary has not established such rules with respect to reviewing R.S. 2477 claims.
Regulations “Pertaining To” R.S. 2477
Congress has required that regulations “pertaining to” R.S. 2477 not be effective
until Congress has approved them. Section 108 of the 1997 Omnibus Appropriations
Act, P.L. 104-208 states:
No final rule or regulation of any agency of the Federal Government pertaining
to the recognition, management, or validity of a right-of-way pursuant to Revised
Statute 2477 (43 U.S.C. 932) shall take effect unless expressly authorized by an62
Act of Congress subsequent to the date of enactment of this Act.
Similar statutory language was deleted from the Interior Appropriations Act for
FY1998 in reliance on the assertion that the language in the 1997 Act was permanent63
law and hence an additional enactment was unnecessary. There have been no
further statutory prohibitions since, and no further attempts at direct R.S. 2477
Assuming that § 108 is permanent law, a basic issue is whether the disclaimer
regulations are covered by § 108 – i.e. whether they “pertain to” R.S. 2477. The
Department looks to the legislative history of § 108 to conclude that the Congress
intended the Department to acknowledge rights of way:
Congress enacted section 108 to prevent the Department from promulgating final
rules and regulations setting out specific standards for R.S. 2477 rights-of-way.
See H.R. Rep. No. 104-625, at 58 (1996). Instead, it appears that Congress itself
wanted to enact legislation defining the key terms and scope of grants for R.S.
[T]he public interest will be better served if these grants [for highway
rights-of-way across Federal land] to States and their political
subdivisions are not put in jeopardy by the Department pending
Congressional clarification of these issues. [Then] Section 109 does
not limit the ability of the Department to acknowledge or deny the
60 It is also the policy of the government that there must be some authority for the disposal
of federal property. See 18 U.S.C. § 641, which contains criminal penalties for the
unauthorized disposal of federal property. Clearly R.S. 2477 granted the highway rights of
way interest. The standards for ascertaining when such rights of way are valid and the
grants legally completed, however, are not clear. Where the legal standards are unclear and
the policy interests polarized, some may question the appropriateness of using the disclaimer
61 43 U.S.C. § 1701(a)(5).
62 P.L. 104-208, § 108, 110 Stat. 3009-200 (1996).
63 See H.R. Rep. 105-337 at 73-74 (1997). The Report indicates that Congress was relying
on the Opinion B-277719 of the Comptroller General dated August 20, 1997.
validity of claims under R.S. 2477 or limit the right of grantees to64
litigate their claims in any court. Id..
The § 108 statutory language sets up a situation where the Secretary is not to
finalize regulations establishing standards by which to validate R.S. 2477 claims, yet
the report refers to the Department nonetheless being able to acknowledge or deny
such claims,65 an ambiguity that might lead to challenges to any such validations or
In order to minimize R.S. 2477 determinations until Congress acted to clarify
how such rights of way were to be validated, the January 22, 1997 policy on R.S.
2477 instructed the BLM to defer processing R.S. 2477 claims except in cases where
there is a “demonstrated, compelling, and immediate need to make such
determinations,” and the Forest Service followed suit. This meant that few
determinations would be made, pending congressional clarification, and disputes
involving R.S. 2477 rights of way were primarily to be determined by the courts.
The current Administration is taking a new approach that does not involve
rulemaking to set out validity standards – such rules could trigger the prohibition of
§ 108 – but is an approach that also could greatly expand the number of claims that
may be validated. This approach will be implemented through changes to the
procedures for issuing disclaimers. As discussed, the Department seems to view §
rights of way, and therefore as unrelated to disclaimer rule changes which may or
may not impact R.S. 2477 rights of way. However, the actual wording of § 108
appears to prohibit all regulations that “pertain” to R.S. 2477. The materials
explaining the proposed changes to the disclaimer regulations indicated that the
disclaimers might be a part of a new agency adjudication process to clear up R.S.
2477 claims,67 and the Forest Service stated that the disclaimers could be used for
R.S. 2477 rights of way determinations and that “[c]urrently there is no
administrative process available for states or land management agencies like the
Forest Service to resolve such title claims; the process is time consuming and
requires expensive litigation in Federal Courts....”68
64 Letter to Susan Sawtelle, supra, at 3.
65 Later committee report language indicates that § 108 sought to reserve to Congress
approval of alternatives to processing R.S. 2477 claims under the QTA. See discussion of
S. Rep. No. 105-160 (1998) in United States v. Garfield County, 122 F. Supp. 2d 1201, 1236
(C.D. Ut. 2000). However, H.R. Rep. No. 104-625 at 57-58 (1996) states that the language
“does not limit the ability of the Department to acknowledge or deny the validity of claims
under R.S. 2477 ....”
66 H.R. Rep. 104-625, at 58 (1996).
67 68 Fed. Reg. 497.
68 68 Fed. Reg. 499.
The Department reports there have been only 62 disclaimers issued under § 315
since its enactment in 1976,69 and none involved a disclaimer of an easement or
involved rights of way claims under R.S. 2477.70 However, as a result of the broad
definition of “state” in the new disclaimer regulations, more claimants may now be
able to avoid the 12-year limitation that appeared in the previous disclaimer
regulations, which could result in many more applications for § 315 disclaimers
related to R.S. 2477 rights of way. The expansion of the meaning of “state” in the
amended disclaimer regulations now allows counties and other entities to apply for
disclaimers, even if they could not do so under the previous disclaimer regulations
or the QTA. In commenting on the proposal, some counties indicated an awareness
of the opportunity, objecting to the costs that might result from their expected
“hundreds” of filings that could be involved in some counties.71
More recently, the Utah MOU expressly recognizes that additional agreements
will be completed with counties.72 It is not clear whether the 1997 R.S. 2477 policy
will be eliminated with respect to these counties, or what validation criteria will be
used in implementing any future agreements. Other states have indicated that they
will seek agreements, and whether the terms of those agreements and the criteria to
be applied will differ from previous agreements is not known. The policies of
FLPMA contemplate uniformity and consistency with respect to the management of
the federal public lands in general and with respect to disposal in particular and some
may argue that these policies weigh against having varied criteria for validating R.S.
In as much as the disclaimer regulations have been amended in a manner that
appears to expand the opportunity for those entities most likely to claim R.S. 2477
rights of way to do so, that the Utah MOU indicates that agreements will be
negotiated with counties directly, and that there are indications that at least hundreds
of claims are now likely to be filed,73 it could be argued that the new disclaimer
69 68 Fed. Reg. 498.
70 The Department has provided examples of disclaimers involving less than fee interests
and examples of disclaimers of the reversionary interest of the United States in conditional
rights of way.
71 68 Fed. Reg. 499-500, referring to comments of Gilpin County, Colorado, Valley County,
Idaho, and San Bernadino County, California. In response, BLM noted that it may waive
72 Paragraph 3 of the MOU states that: “The State of Utah, or any Utah county, shall submit
a request to initiate the Acknowledgment Process ....” Paragraph 7 states: “ ... the
Department recognizes that other interested states and counties may wish to submit
proposed MOU’s for consideration by the Department that are generally consistent with the
principles set out in this agreement.”
73 As to potential R.S. 2477 claims in Utah alone: “[e]stimates of claims range from 2,000
to more than 10,000, but 5,000 seems to represent the generally agreed figure.” Amicus
Brief of Natural Resources Defense Council in Southern Utah Wilderness Alliance v.th
Bureau of Land Management, No. 01-4009 (10 Cir.) n.11, at 20. (Appeal dismissed as
premature.). In 1993, Alaska undertook to identify R.S. 2477 rights of way in that state
(Alaska Stat. § 19.30.400(b)), identified 1,899 trails and concluded that about 560 qualified.
regulations are intended to provide a means for claimants to assert R.S. 2477 claims,
that they “pertain” to R.S. 2477, and therefore must be approved by Congress before
The Department has asserted that interpreting P.L. 104-208 so as to prohibit the
use of disclaimer regulations would partially repeal § 310 of FLPMA (the rulemaking
authority) and § 315, and that repeals by implication are not favored by the courts.74
However, it could be argued that a requirement by Congress that regulations on a
particular subject must be approved by an act of Congress does not repeal the general
rulemaking authority. And, assuming that certain amendments to § 315 disclaimer
regulations were found to be so tailored as to pertain primarily to the R.S. 2477
context and therefore not effective without congressional approval, this would not
necessarily repeal the general authority to utilize disclaimers.
In sum, the new disclaimer regulations present at least two questions: 1) whether
the rule amendments, by significantly expanding the use of disclaimers to process
R.S. 2477 rights of way are a proper use of the § 315 authority; and 2) assuming that
the no-R.S. 2477-regulations language in P.L. 104-208 is still in effect, whether the
new changes to the disclaimer regulations “pertain to” recognition and validity of
R.S. 2477 rights of way within the meaning of P.L. 104-208, and, therefore, must be
approved by Congress.
The Utah Memorandum of Understanding
The connection between the recent amendments to the disclaimer of interest
regulations and R.S. 2477 rights of way has recently been clarified by the execution
of a Memorandum of Understanding (MOU) on April 9, 2003, between the Secretary
of the Interior and the state of Utah to establish an “acknowledgment process” for
recognizing some R.S. 2477 rights of way in that state. It is expressly stated in
paragraph 4 of the MOU that the acknowledgment process that the Department “shall
use” to acknowledge eligible roads is “FLPMA’s recordable disclaimer of interest
process.” “The Utah State Director of the Bureau of Land Management will issue a
recordable disclaimer of interest if the requirements of the applicable statutes and
regulations, and the terms of this MOU, have been satisfied.”
The current MOU is to apply to only some of the many claims Utah may have.
For example, the MOU precludes consideration of rights of way within
congressionally designated Wilderness Areas or Wilderness Study Areas designated
on or before October 21, 1993, under Section 603 of FLPMA (thereby facially
eliminating any that might result from the wilderness reevaluation conducted by
Secretary Babbitt); roads that lie within the boundaries of any unit of the National
Park System (although most national monuments are within the National Park
In 1998 the Legislature declared these “available for use by the public.” (Alaska Stat. §
74 68 Fed. Reg. 497 (January 6, 2003).
System, the Grand Staircase-Escalante National Monument is not – because it is
managed by BLM, and hence it is not protected from claims under the MOU); roads
within a unit of the National Wildlife Refuge System; or roads administered by
another agency unless that agency consents to the use of the Acknowledgment
The MOU does not set out the criteria by which the validity of claimed rights
of way will be determined. As discussed in connection with the analysis of § 108 of
P.L. 104-208, supra, this may be to comport with the desire of Congress to itself
legislate regarding standards for validating R.S. 2477 claims. However, the subtitle
of the MOU refers to State and County “Road” Acknowledgment. The word “road”
is footnoted as follows: “[F]or purposes of this MOU, the terms “A road” and “A
highway” shall be deemed synonomous.” (sic) The R.S. 2477 grant was for the
“construction of highways across public lands not reserved.” Arguably, the equating
of highway and road in the title of the Utah MOU eliminates one major issue – that
the 1866 grant was for “highways” and not all “roads.” There is no elaboration in the
MOU on how “construction” or “not reserved” will be interpreted. It is stated that
eligible roads are those: (1) that existed prior to enactment of FLPMA and which “are
in use at the present time;” (2) identifiable by centerline description or other
appropriate legal description; (3) documented by information sufficient to support a
conclusion that the road meets “the legal requirements of a right-of-way granted
under R.S. 2477;” and requires that (4) “the road was and continues to be public and
capable of accommodating automobiles or trucks with four wheels and has been the
subject of some type of periodic maintenance.”
Paragraph 7 states that the 1997 [Babbitt] policy is inapplicable to
acknowledgment requests submitted in accordance with the MOU. This is
presumably because that policy directed that R.S. 2477 rights of way only be
validated in compelling circumstances. The 1997 policy repealed an earlier 1988
(Hodel) policy. There is no clarification in the MOU as to whether the Department
is presuming that the 1988 policy will now guide these determinations in Utah, and
therefore whether the 1988 definitions of construction and other elements will apply.
Paragraph 7 states that other states and counties may wish to propose MOU’s for
consideration by the Department that are “generally consistent with the principles set
out in this agreement.” This raise the issue of whether certain R.S. 2477 validity
policies and criteria will apply in some states or counties as to some claims, but not
in others as additional states and counties negotiate various MOUs. Alaska
reportedly has sought negotiations for an agreement75 and other states may follow.
It has been noted that the Utah MOU was negotiated and finalized without public
participation, but it is unclear whether those that may follow will also be completed
in this manner. If a closed and varied approach is taken with respect to the new
disclaimer process for R.S. 2477 claims, resulting agreements may be challenged as
not comporting with the policies of FLPMA that establish uniform management for
the public lands and direct that the Secretary “in administering public land statutes
75 Sam Bishop, State seeks federal agreement on historic trails, FAIRBANKS DAILY NEWS-
MINER, July 25, 2003.
and exercising discretionary authority granted by them ... establish comprehensive
rules and regulations after considering the views of the general public.”76
In a recent letter responding to a question posed by the General Accounting
Office as to what additional guidance for processing applications for R.S. 2477
disclaimers might be available, the Department responded that the June 25, 2003
memorandum from the Deputy Director of BLM to the State Director of BLM in
Utah was the only additional information expected to be issued.77 The letter further
states that the guidance implements BLM’s authority under the disclaimer regulations
and the MOU, was not subject to notice and comment rulemaking, and was not
published in the Federal Register or elsewhere. The June 25, 2003 guidance
summarizes some of the terms of the MOU and states that: “[t]hrough the MOU,
Interior and the State have agreed to focus their limited resources on acknowledging
these R.S. 2477 rights-of-way, that satisfy the statutory requirements of
“construction” and “highway” under almost any interpretation of those statutory
terms.” However, as indicated above, there may be differences of opinion regarding
The guidance sets out what should be in an application, including information
demonstrating that the claimed right of way existed prior to October 21, 1976, and
that it was in use as of April 9, 2003; and details as to appropriate description and
location information. The application also should describe any “improvements such
as bridges or culverts and other ancillary features existing as of April 9, 2003.”
(Emphasis added.) Why this is the relevant date to demonstrate whether
improvements existed that might demonstrate “construction” of a highway, rather
than October 21, 1976 – the date of statutory repeal of the grant – is not explained.
Examples of helpful information mentioned in the guidance include: a narrative as
to when the claimed right of way was constructed and supporting evidence; affidavits
and/or other legally cognizable documents evidencing how the claimed right of way
was established, its history and usage; and historic maps and photographs of the
claimed right of way (pre-October 21, 1976). There is no information as to what
criteria BLM will apply in evaluating this supporting evidence regarding adequacy
Paragraph 5 of the MOU states that a disclaimed right of way will be of “a
sufficient width to allow the State or county to maintain the character, usage, and
travel safety of the road existing at the date of this MOU.” The guidance indicates
that a draft decision on an application will be prepared that will describe the right of
way, including its width. “The width of the road asserted and the width of the road
disclaimed shall not exceed the width of ground disturbance that existed for the road
as of April 9, 2003, the date of the MOU.” In this context too, no explanation is
given as to why the date of the MOU is used to determine the baseline width of the
road, rather than October 21, 1976.
Paragraph 6 of the MOU also states that “where the State or a county wishes to
substantially alter a road that is subject to the Acknowledgment Process in a way that
76 43 U.S.C. § 1701.
77 Letter to Susan D. Sawtelle, supra.
is outside the scope of ordinary maintenance, it will do so only after notifying BLM
of its intentions and giving BLM an opportunity to determine that no permit or other
authorization is required under federal law ....”
The June 25th guidance discusses the public notice of an application that will be
required (notice is required under both the statute and the regulations), and states
that only the applicant or claimant has the right to appeal a decision to the Interior
Board of Land Appeals, and that no other form of appeal is available to other
persons. This reflects the disclaimer regulations which require publication of notice
when an application is filed for a disclaimer,78 but include no requirement for a
comment period and allow only an applicant to appeal.79 The June 25th guidance with
respect to the implementation of the Utah MOU clarifies that the BLM, in
consultation with the applicant, will review all timely comments received on a
disclaimer application under that MOU and documentation will be placed in the case
file responding to all “relevant, substantive issues” raised by commenters.
The Utah MOU may raise many questions as to the interpretation of the R.S.
2477 grant. An analysis of the history of the R.S. 2477 grants, the elements of the
grant, and their administrative and judicial interpretation is essential to evaluating the
Utah MOU and future actions of the Department regarding R.S. 2477.
R.S. 2477 Rights of Way
R.S. 2477 rights of way are those obtained under an 1866 statute reenacted as
§ 2477 of the Revised Statutes, an act that was later codified at 43 U.S.C. § 932 until
it was repealed by uncodified § 706 of FLPMA. The 1866 statutory language was
succinct, stating simply:
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.80
Section 701 of FLPMA provided that valid rights of way in existence at the time81
of repeal in 1976 were to be recognized. Similarly, section 509 of FLPMA states
that nothing in Title V on rights of way "shall have the effect of terminating any
right-of-way or right-of-use heretofore issued, granted, or permitted." Therefore,
R.S. 2477 rights of way that were valid on October 22, 1976, the effective date of
FLPMA and not abandoned thereafter, are protected. In most states it was clear
which highway beds were valid because there had been some form of acceptance
78 43 C.F.R. § 1864.2.
79 43 C.F.R. § 1864.4.
80 Act of July 26, 1866, ch. 262, 14 Stat. 251.
81 Whether a right of way might have been abandoned before 1976 is another issue that
might be involved in determining the validity of a particular right of way, but will not be
discussed in this report.
process under state law (typically a system of county maintenance) that made the
roadways identifiable. In a few states, however (notably Utah and Alaska), there was
no clear system of acceptance or recordation, and the existence and maintenance of
some highways as a factual matter also was not clear and, as a result, which roadbeds
might still qualify under the 1866 law has been controversial. The question is
important because areas traversed by asserted R.S. 2477 highways may be
disqualified from consideration for possible inclusion in the National Wilderness
Preservation System, or might now be private lands, or lands in federal reserves (such
as parks or national forests) created after the establishment of the rights of way. The
proper interpretation of “construction,” “highway,” and “not reserved” in the federal
grant, and the appropriate scope of the role of state law also have been controversial.
The historical context of the R.S. 2477 highway grant sheds light on the purpose
and importance of the act in the settlement of the West. After the United States
acquired the vast territories west of the Mississippi, Congress debated how best to
encourage settlement of the lands. Rapid settlement was considered desirable both
to secure the new lands from foreign encroachment and to speed the conveyance of
lands from federal to state and private ownership in order to build the new nation.
Although Congress enacted many piecemeal laws in furtherance of these goals, the
westward movement outpaced Congressional efforts at comprehensive legislation.
As a result, many explorers, developers, and settlers were already on the western
lands by the time the first national homesteading and land laws were enacted.
Comprehensive authority to manage the lands that remained in federal ownership was
not enacted until the 20th century.
Mineral development is an example of an area in which federal law was playing
"catch up" with events. Private individuals and companies entered upon the federal
public domain lands in search of mineral wealth before there was legislated
authorization to do so. Sometimes the influx of miners was quite significant, as
when thousands of miners flocked to California after the discovery of gold in 1849.
Because in many areas even territorial governments had not yet been established,
claimants developed local rules and customs to govern the location (establishment)
of mining claims and priorities among themselves.
In the 1860's, Congress enacted several pieces of legislation that both
legitimized existing occupations of the federal lands and addressed their use
prospectively. One of these was the Homestead Act of 1862,82 which provided a
system by which citizens could obtain title to public lands for agricultural settlement
purposes. The Mining Act of 186683 provided an initial system for the recognition
of mining claims and for obtaining title to the lands on which mining claims were
established. Section 8 of the Act provided for the granting of rights of way, later
became section 2477 of the Revised Statutes (R.S. 2477), and still later was codified
as 43 U.S.C. §932 until its repeal in 1976 by § 706 of FLPMA.
R.S. 2477 highway grants played an important role in the development of the
West. Many state and county roads in the West today originated as R.S. 2477 roads,
82 Act of May 20, 1862, ch. 75, 12 Stat. 392, as amended.
83 Act of July 26, 1866, ch. 262, 14 Stat 251.
and the validity of most of these roads was clearly established by 1976. However,
it is essential to note that R.S. 2477 rights of way are not now, nor were they ever, the
only type of road or access allowed across federal lands.84 In any particular instance,
a denial of a R.S. 2477 right of way is not dispositive of whether and how a road or
other access was or may be recognized or permitted.
The next section of this report will examine the statute itself, the historical
context in which it was enacted, and proffer a possible interpretation.
It is a fundamental rule of statutory construction that every issue of statutory
interpretation should begin with a close textual examination,85 and that the "plain
meaning" of a provision must guide its interpretation.86 The provision reads:
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.
Succinct though the section is, it is clear that R.S. 2477 is a grant of a right of
way for the “construction” of “highways” across public lands “not reserved.” Several
approaches to possible meanings of these terms will be discussed. Because the basic
purpose of the grant -- for highways -- sheds light on what Congress might have
meant by "construction," the term "highways" will be examined first.
In many discussions of R.S. 2477 (and in the Utah MOU), there is a tendency
for speakers to use "highway" and "road" interchangeably, or to substitute other
words such as "ways" or even "trails" and cease to refer to "highways" at all.
Arguably, this can produce a significant shift in emphasis. There appear to be
distinctions between "highway" and "road," and between "road" and still lesser terms,
such that only "highways," the term chosen by Congress, should properly be used.
Like many words in the English language, the term "highway" has more than
one meaning; unfortunately, two of its meanings have somewhat opposite
connotations, as can be demonstrated from numerous treatises and other sources.87
84 See Title V of FLPMA, which authorizes rights of way across federal lands, and Title XI
and especially § 1110 on access to inholdings in the Alaska National Interest Lands
Conservation Act of 1980 (ANILCA) (Pub. L. 96-487, 94 Stat. 2464), and other access
85 Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197 (1976), quoting Blue Chip Stamps v.
Manor Drug Stores, 421 U.S. 723, 756 (1975).
86 See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987); TVA v. Hill, 437 U.S. 153
(1978); W.Va. Div. Izaak Walton League, Inc. v. Butz, 367 F. Supp. 422, 429 (1973),
affirmed 522 F.2d 945 (4th Cir. 1975).
87 See, e.g., the nearly contemporaneous BENJAMIN V. ABBOTT, DICTIONARY OF TERMS AND
PHRASES (1879) which points out "[t]here is a difference in the shade of meaning conveyed
by two uses of the word. Sometimes it signifies right of free passage, in the abstract, not
importing anything about the character or construction of the way. Thus, a river is called
One of the principal definitions of the term is a generic one meaning any avenue of
travel open to the public, including rivers and bridges.88 Congress has used the term
in this sense when it has referred to rivers being free highways.89 With respect to
ground transportation, the term “highway” similarly can mean any way open to the
public, even including footpaths. The term especially has this meaning in English
law when used in the context of prescriptive rights obtained by the public across
private lands, and this meaning carried over into some American state law.90
Under English law, too, better roads -- those that were built up so as to be
literally "high" ways, typically connected towns or market places, etc. and enjoyed
better protection for travelers – were known as "King's (or Queen's) highways". This
usage gave rise to the second meaning of highway as "a main or principal road
forming the direct or ordinary route between one town or city and another, as
distinguished from a local, branch, or cross road, leading to smaller places off the
main road, or connecting two main roads."91
American dictionaries of common usage published near the time of enactment
of R.S. 2477 indicate that this second meaning, that of principal public roads, was
evidently the common American meaning at the time of enactment: highway was not
defined in the generic sense as a travel corridor of any kind. Rather, the
contemporaneous common usage dictionaries use "road" as the more generic term,
and "highway" (at least in the context of ground transportation) to mean a more
significant road. According to the 1865 Webster's Dictionary, a "road" is
a riding, a riding on horseback, that on which one rides or travels, a trackway, a
road, from ridan, to ride .... a place where one may ride; an open way or public
passage; a track for travel, forming a communication between one city, town, or92
place, and another.
a highway; and it has been not unusual for congress (sic), in granting a privilege of building
a bridge, to declare that it shall be a public highway. [On the other hand], it has reference
to some system of law authorizing the taking of a strip of land, and preparing and devoting
it to the use of travelers. In this use it imports a roadway upon the soil, constructed under
the authority of these laws."
88 ABBOTT, supra; BYRON K. AND WILLIAM F. ELLIOTT, THE LAW OF ROADS AND STREETS
89 See Act of March 3, 1811, ch. 46, 2 Stat. 606, R.S. 5251, 33 U.S.C. §10, which states that
"All the navigable rivers and waters in the former Territories of Orleans and Louisiana shall
be and forever remain public highways."
90 See, e.g., JAMES KENT, III COMMENTARIES 548 et seq.
91 JAMES A.H. MURRAY, A NEW ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 285
(1888). See also the definition of "highway" contained in ALEXANDER M. BURRILL, LAW
DICTIONARY AND GLOSSARY 23 (2d Ed. 1867), which includes both the generic meaning of
highway and the distinction of a King's highway as a "great road" that goes from town to
92 WEBSTER'S AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 1143 (1865) (emphasis
According to the same 1865 dictionary, a "highway" is a public road, a way
open to all passengers.93 The 1860 Webster's Dictionary also indicates that "road"
is the general term for any ground appropriated for travel, while "highway" is a
significant type of road:
Road: an open way or public passage; ground appropriated for travel, forming
a communication between one city, town, or place, and another. The word is
generally applied to highways, and as a generic term it includes highway, street94
and lane ....
Highway: a public road; a way open to all passengers; so called, either because
it is a great or public road, or because the earth was raised to form a dry path.95
Highways open a communication from one City or town to another.
Although the terms at times have been used interchangeably in discussing R.S.
2477, "highways" is the term used by Congress and it is used in conjunction with a
requirement for construction. "Roads" appears to be the more general term and
"highways" the more specific term. In other words, while all highways are roads, not
all roads are highways, since, arguably, highways are public, and are more96
significant, built up roads.
In which sense Congress used the term highway is obviously of great
significance in interpreting R.S. 2477. Whatever the meaning of highway might be
in other contexts, such as the determination of prescriptive rights, the question arising
from its use in legislation is one of congressional intent. One writer noted the
difficulties entailed by the use of the term highway in legislation:
...It is to be regretted that the term ‘highways’ has not been more accurately
employed by the courts and text writers, for it is undeniably true that confusion,
and sometimes injustice, has resulted from the use of this vague and ill defined
term. Whether streets, ferries, railroads, rivers, or rural roads, are all meant to
be included in a particular statute can not, in many instances, be asserted without
a careful study of the entire statute and a full consideration of all the matters
which the courts usually call to their assistance in ascertaining the meaning and
effect of legislative enactments. A word capable of so many different meanings
can seldom, of its own force and vigor, influence the judicial mind engaged in97
the work of ascertaining and enforcing the legislative intention.
For reasons that will be developed, it appears likely that Congress in the 1866
Act used the term highway in the sense of a significant or principal road; namely, one
93 Id. at 627.
94 WEBSTER'S AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 959 (1860) (emphasis
95 Id. at 552 (emphasis added).
96 This distinction is still evident in modern usage: the 1997 WEBSTER'S NEW COLLEGIATE
DICTIONARY defines "highway" as "a public road, esp. a main direct road." (Emphasis
97 Elliott, supra, at 6.
that was open for public passage, received a significant amount of public use, was
constructed or improved, and that connected cities, towns, or other places of interest
to the public. It is interesting to note that some degree of constructed improvement
inheres in this concept of a highway in order to support the greater public use that
characterizes such roads. This comports with Congress' reference to granting rights
of way for the "construction of highways". Of course, it must be kept in mind that
highways in times past were not 6-lane paved roads, and that the historical amount
and type of travel in an area and era must be taken into account in evaluating what
qualifies as a principal, public, improved road.
There is no legislative history that sheds light on why Congress included the
highway grant as section 8 in the Mining Act of 1866 (Act), or on exactly what
Congress intended by the language of the section. The Mining Act of 1866
established a system for the recognition of several practices that had been taking
place on public domain lands. Some of the provisions directly addressed mining,
other provisions related to the use of water and to rights of way. These latter
provisions addressed practices that were related to mining, but had implications
beyond the mining context. The Act legitimized mining claims in accordance with
federal laws or regulations, state and local law, and even the local customs of miners,
and provided that claimants could obtain full title to the lands on which mining
claims were located. Because water was necessary for some types of mining, the Act
acknowledged rights to use water, if such rights were recognized by local customs,
laws, and the decisions of courts, and § 9 of the 1866 act also addressed construction
of rights of way for ditches for the transport of water.
The principal focus of the floor debates on the Act was on alternatives for
disposing of the mineral lands of the United States, and section 8 was not discussed.98
98 Rep. Julian, Chairman of the House Committee on Public Lands had introduced H.R. 322,
a bill to sell the mineral lands of the United States in 40 acre parcels. This bill as introduced
and as reported did not contain a right of way provision. See H.R. Rep. 39-66, (1866). S.
257 also proposed a system that regulated the occupation of mineral lands, extended
preemption rights to claimants, and allowed the acquisition of full fee title to lode claims.
Section 8 was not in S. 257 as introduced, but was section 10 of the bill as reported from the
Senate Committee on Mines and Mining. No committee report is available on this measure.
Note that when section 5 of the final Act was proposed as an amendment on the floor of the
Senate it was defeated by a vote of 21-10. Section 5 recognizes the operation of state law
in defining certain aspects of miners' rights, including "easements". This provision was
included in the final version. It is not known what was intended by state law allowing
"easements", or whether any states enacted laws allowing access easements to mines on
federal lands. The title of the Senate bill was amended to read: "A bill to legalize the
occupation of mineral lands and to extend the right of preemption thereto."
When S. 257 reached the House, Rep. Higby attempted to have it sent to the
Committee on Mines and Mining, but Rep. Julian succeeded in having it sent to his
Committee on Public Lands, where it languished.
The Senate then amended H.R. 365, a bill to grant rights of way to ditch and canal
owners in California, Oregon and Nevada, to substitute the text of S. 257. H.R. 365 did not
originally contain a provision like section 8. That measure was sent to the House on a
Saturday afternoon and was brought up under a rule precluding debate. Rep. Julian
protested this "plot to obtain legislation under false pretenses" as a "reproach to public
Therefore, in seeking clarification of the intent of Congress in enacting R.S. 2477,
we must look primarily to the words Congress actually used and to the historical
context in which they were enacted. While the issue is not free from doubt, a court --
faced squarely with the issue -- is likely to find that the understanding of Congress
in 1866 was probably of highways in the sense of significant public roads, an
interpretation supported by the historical context in which the 1866 Act was passed,99
including other congressional enactments, as discussed below
The creation of roads and access were fundamental problems implicit in the
surveying system the federal government used to divide and dispose of public lands.
The federal government applied the same system of surveying since the Continental
Congress passed the Land Ordinance of 1785, an act that was later re-enacted by the
new federal government.100 Under this system, a principal meridian, base, standard
and guides were first measured and marked, and "townships" – squares six miles on
a side – were surveyed. The townships were then divided into "sections" one mile
on a side, each of which contained 640 acres (the amount of land allowed under the
Stock-Raising Homestead Act of 1916). These sections were divided into halves (the
320 acres allowed under the Desert Land Entry Act of 1877), or further divided into
quarters (the 160 acres allowed under the Homesteading Act of 1862), or smaller
subdivisions allowed under certain other acts.
These sections and blocks available for settlement and disposal were absolute,
that is each surveyed subdivision abutted the next one without access corridors
intervening. This practice, combined with the fact that many sections of lands were
granted to the states and other entities for school and other public purposes to spur
development, resulted in "checkerboard" land patterns and meant that access needs
were a pressing exigency. Congress did not resolve the issue, choosing instead to
acquiesce in whatever access solutions developed on unreserved federal lands.
Access problems typically were resolved among settlers as the local topography and
circumstances indicated; usually, settlers simply created roads and ways across lands
as needed. Subsequent settlers took title subject to established roads and ways.101
Later, as areas became more developed, access needs were resolved by negotiation
and purchase of the necessary rights. Given the intermingled patterns of land
decency and common fair play". CONG. GLOBE, 39th Cong., 1st Sess. 4049 (1866). Rep.
Julian attempted to amend the bill to substitute a system such as that in his bill, H.R. 322,
again without a right of way section. This amendment was defeated and the Senate version
was passed 73 to 37.
See also, the discussion of the enactment of the 1866 act in: PAUL W. GATES, HISTORY
OF PUBLIC LAND LAW DEVELOPMENT 715-721.
99 Ute Indian Tribe v. Utah, 521 F. Supp. 1072, 1080, 1087 (C.D. Utah 1981).
100 Act of May 18, 1796, ch. 29, 1 Stat. 464.
101 Surveyors were to note all existing roads and trails on their field notes and final surveys.
See the 1889 instructions of the Commissioner of the General Land Office, in C. ALBERT
WHITE, A HISTORY OF THE RECTANGULAR SURVEY SYSTEM 574 (1982).
ownership, establishment of roads was typically of mutual benefit, which apparently
facilitated resolution of this difficulty that was inherent in the survey system.
Territorial and state laws also played a role in the resolution of access and roads
issues, as will be discussed.
A court has discussed the problem caused by the surveying system as follows:
[The sections] touch at their corners and their points of contact, like a point in
mathematics, are without length or width. If the position of the company were
sustained, a barrier embracing many thousand acres of public lands would be
raised, unsurmountable except upon terms prescribed by it. Not even a solitary
horseman could pick his way across without trespassing. In such a situation the
law fixes the relative rights and responsibilities of the parties. It does not leave
them to the determination of either party. As long as the present policy of the
government continues, all persons as its licensees have an equal right of use of
the public domain, which cannot be denied by interlocking lands held in private102
In an 1890 case the Supreme Court declined to enjoin sheepherders from driving
sheep across sections owned by plaintiffs in order to reach open public lands, stating:
We are of the opinion that there is an implied license growing out of the
custom of nearly a hundred years, that the public lands of the United States ...
shall be free to the people who seek to use them where they are left open and
unenclosed, and no act of government forbids this use ....
The whole system of the control of the public lands of the United States as
it had been conducted by the Government, under acts of Congress, shows a103
liberality in regard to their use which has been uniform and remarkable.
The Court, in the course of distinguishing between access rights the federal
government might have retained and those of settlers in the context of a federal land
grant for the construction of a railroad, also stated:
Congress obviously believed that when development came, it would occur in a
parallel fashion on adjoining public and private lands and that the process of
subdivision, organization of a polity, and the ordinary pressures of commercial
and social intercourse would work itself into a pattern of access roads .... It is
some testament to common sense that the present case is virtually unprecedented,
and that in the 117 years since the [railroad] grants were made, litigation over104
access questions generally has been rare.
It is interesting to note that an 1895 Solicitor's opinion found that the
government had always allowed miners to build access roads without either a permit
or the payment of a fee:
102 Mackay v. Uinta Development Co., 219 F. 116, 118 (8th Cir. 1914).
103 Buford v. Houtz, 133 U.S. 320, 326-327 (1890).
104 Leo Sheep Co. v. United States, 440 U.S. 668, 686-687 (1979).
Since it has traditionally been customary for mining locators, homestead and
other public land entrymen to build and/or use such roads across public lands
other than granted rights-of-way as were necessary to provide ingress and egress
to and from their entries or claims without charge, the question whether a fee
may be charged for such use is not only of broad, general interest but to make
such a charge now would change a long practice.
... Congress knew, when it enacted the mining laws, that miners necessarily
would have to use public lands outside of the boundaries of their claims for the
running of tunnels and for roads.
The Department has recognized that roads were necessary and complementary105
to mining activities....
The opinion did not mention section 8 of the 1866 Mining Act (R.S. 2477) as
relevant to the discussion of mining road access. Furthermore, if the 1866 Act is read
as granting individual access, this interpretation would controvert the universally106
recognized requirement that a way be public to be a highway. It is arguable that
the better interpretation is that creation of individual access was tolerated as a matter
of course and that R.S. 2477 addressed public roads. If the 1866 Act is read to mean
highways in the generic sense of all kinds and types of ways, including minor
individual access ways, one could argue that the act was superfluous since the federal
government at that time was allowing such use without requiring a grant or permit
and did not attach any management significance to doing so. And if the 1866
provision was intended to legitimize all transit and access across the public domain,
this would include individual access roads and trails that were not public.
However, the other meaning of "highways" -- as significant public roads --
arguably is more consistent with other measures Congress enacted that both
addressed continued easy individual access on the one hand and the development of
significant transportation corridors on the other.
In the Unlawful Inclosures of Public Lands Act of 1885, Congress regulated the107
fencing off of public lands (even when the fences were on private lands) and
prohibited the obstruction of "free passage or transit over or through the public108
lands". This Act prohibits obstruction of any passage over the federal lands --
whether on established ways or not -- and is reflective of Congress' tolerance of such
passage during the time of western settlement, an indication that a special statute on
minor access ways was not required. If R.S. 2477 granted rights of way only for
highways in the sense of significant public roads, the 1885 Act serves more of a
105 Opinion of Edmund T. Fritz, Acting Solicitor, M-36584, 66 I.D. 361, 362, 364 (1959).
The granted rights of way referred to are those for tram roads and other purposes under the
act of January 21, 1895, 28 Stat. 635.
106 See the definitions cited above and the section of this report on Administrative
107 Camfield v. United States, 167 U.S. 518 (1897).
108 Act of February 25, 1885, ch. 149, 23 Stat. 321, codified at 43 U.S.C. §§1061, 1063.
function because there would be a need for federal protection of all other free passage
and transit across the public lands.
During the time of settlement of the new national lands to the West, Congress
also provided land grants for the “construction” of many transportation routes by
canals, railroads, or "wagon roads". These grants, including those made for wagon
roads, typically were for the construction of particular routes between named
destinations, often with some legislated detail as to the type and timing of
construction. Such grants typically included grants of lands sufficient both for the
bed of the transportation route itself, and extra lands to be sold so that the proceeds
could be put toward completing the work. If construction did not occur, there
typically was language providing for the reversion of the lands to the United States.
Several statutes enacted before 1866 provided for “construction” of "wagon
roads," which were to be well constructed roads adequate for the movement of troops
and the mail. Clearly construction of these roads entailed definite physical acts to
improve the roadbeds, and Congress at times required them to be built to very
substantial standards, involving considerable earth-moving activities, even to the
extent of leveling hills.109
Some of these statutes provided simply that the roads were to be "public
highways"; others stated that the road must remain a public highway "for the use of
the government of the United States, free from tolls or other charge upon the
transportation of any property, troops, or mails of the United States."110 An 1866
statute established a process for the dedication of military roads in the District of
Columbia as public highways. As noted above, roads suitable for the movement of
troops typically were well constructed; this statute simply provided a process for
allowing use of the military roads by the public. 111
It is important to reiterate that the problem of securing routine access and
constructing minor roads throughout the federal public lands surveying system
existed and had been resolved for almost a century before Congress enacted R.S.
2477. Before and after R.S. 2477, the federal government tolerated the creation of
access ways and roads across open federal lands; settlement was the principal
interest of the federal government in the eighteenth and nineteenth centuries, and
allowing individual access was such a given that it was seldom discussed. Even after
109 For example, several acts specified an overall right of way 6 rods wide with the “road-bed
proper to be not less than thirty-two feet wide, and constructed with ample ditches on both
sides, so as to afford sufficient drains, with good and substantial bridges and proper culverts
and sluices where necessary. All stumps and roots to be thoroughly grubbed out between
the ditches the entire length of said road, the central portion of which to be sufficiently
raised to afford a dry road-bed by means of drainage from the centre to the side ditches; the
hills to be levelled and valleys raised so as to make as easy a grade as practicable.” Act of
June 25, 1864, ch. 153, 13 Stat. 183.
110 Act of July 2, 1864, ch. 213, 13 Stat. 355.
111 Act of May 9, 1866, ch. 76, 14 Stat. 45.
enactment of R.S. 2477, the principal work that reviews federal land grants does not
discuss access issues, nor mention the 1866 provision.112
After enactment of R.S. 2477, Congress adopted many other rights of way
provisions for various types of rights of way, especially with respect to crossing
federal reservations. This potpourri of other rights of way acts argues again for an
interpretation of the 1866 Act as not meaning generic ways of all types, but rather as
referring to significant roads.
Before enactment of R.S. 2477, in addition to acquiescing in the creation of
individual access, Congress had authorized and made land grants for the construction
of transportation arteries, including large, well constructed roads in some instances.
We have found only one land grant for a wagon road enacted after the enactment of
the 1866 Act. It is arguable that, since the federal government continued to acquiesce
in the creation of access ways to individual properties as settlers spread westward,
perhaps R.S. 2477 was an express grant of rights of way for all more significant roads
-- those "highways" that were to be open to the public, to serve as important
connectors, and that were to involve some degree of construction to support such use.
In 1872, Congress revisited the mining issues and modified many of the
provisions of the 1866 Act.113 The 1872 Act did not change section 8 of the 1866 Act
on rights of way, and there is no discussion of the section or its retention in the
legislative history of the 1872 Act. In 1899, Congress enacted a provision of
permanent law as part of an appropriations act:
That in the form provided by existing law the Secretary of the Interior may file
and approve surveys and plats of any right of way for a wagon road, railroad, or
other highway over and across any forest reservation or reservoir site when in his114
judgment the public interests will not be injuriously affected thereby.
On the face of this provision, Congress arguably again used "highway" to
indicate significant types of transportation corridors. The legislative history of the
provision is inconclusive, but indicates that it was felt necessary to specify that the
new rights of way were for railroads, because the Department did not construe the
term highways as including railroads.115 This is noteworthy because if ‘highway’ was
generally understood to mean all public avenues of travel, rather than just significant
112 THOMAS DONALDSON, THE PUBLIC DOMAIN: ITS HISTORY, WITH STATISTICS (1884).
This work of 1,343 pages discusses only land grant wagon roads and railroads, but does not
mention other roads.
113 Act of May 10, 1872, ch. 152, 17 Stat. 91.
114 Act of March 3, 1899, ch. 427, 30 Stat. 1214, 1233, codified before repeal at 16 U.S.C.
§525 (national forests) and 43 U.S.C. §958 (reservoirs).
115 The discussion focused on a railroad issue, and its sponsor, Sen. Carter, indicated that the
1897 Organic Act for the national forests already authorized "highways" across national
forests, but that the Secretary of the Interior had interpreted that as not including railroads.
In fact, the act in question had authorized ingress and egress and "wagon roads" necessary
to reach settlers' homes, but did not use the term highway. 32 CONG. REC. 2800 (1899).
land roads, it would include railroads. However, it would also have included wagon
roads as well, so why Congress mentioned both highways and wagon roads is not
In 1875 Congress granted a general right of way through the public lands to any
railroad company for tracks, stations, etc.116 Later statutes provided for the
disposition of the lands underlying the railroad rights of way upon abandonment;
both of these later statutes excepted “public highways” established within the railroad
corridors from the disposal provisions that would otherwise apply.117
Section 603 of FLPMA in 1976 directed the BLM to conduct a wilderness
suitability review of the large roadless areas under its management. Although
"roadless" was not defined in the statute, the section by section discussion in the
House report clarifies that:
The word ‘roadless’ refers to the absence of roads which have been improved
and maintained by mechanical means to insure relatively regular and continuous
use. A way maintained solely by the passage of vehicles does not constitute a118
The explanation set out in the Committee report was reflected in the regulations
implementing the wilderness review, which defined roadless areas in part as areas
within which there is no improved road that is suitable for public travel by means of
four-wheeled, motorized vehicles intended primarily for highway use.119 The
Wilderness Inventory Handbook, prepared to assist personnel with completing the
wilderness suitability inventory, adopted the Committee report language as the
definition of "road," and also defined several other relevant terms in connection with
evaluating roads.120 Because other sections of FLPMA repealed R.S. 2477,
116 Act of March 3, 1875, ch. 152, 18 Stat. 482, codified at 43 U.S.C. § 934.
117 Act of May 25, 1920, ch. 197, 41 Stat. 621, codified at 43 U.S.C. § 913; and Act of
March 8, 1922, ch. 94, 42 Stat. 414, codified at 43 U.S.C. § 912. The former statute
authorizes the railroads to convey “to any State, county, or municipality” any portion of the
railroad right of way to be used as a public highway or street.
118 H.R.Rep. 94-1163 at 17 (1976). A 1980 opinion by Deputy Solicitor Ferguson to
Assistant Attorney General Moorman states that the transcript of the House Committee
markup session reveals that Congressman Steiger of Arizona suggested the definition of
"road" that appears in the House Report. Arizona is an arid state where "ways" can be
created and used as roads merely by the passage of vehicles, and Congressman Steiger took
some pains to draw the distinction between such a "way" and a "road" for wilderness
purposes. The latter, he insisted, was any access route improved or maintained in any way,
such as by grading, placing of culverts, or making of bar ditches. Transcript of Proceedings,
Subcommittee on Public Lands of House Committee on Interior and Insular Affairs, Sept.
119 43 C.F.R. §19.2.
120 USDI, Bureau of Land Management, Wilderness Inventory Handbook 5 (September 27,
1978) defined "Improved and maintained" as “Actions taken physically by man to keep the
road open to vehicular traffic.” "Improved" does not necessarily mean formal construction.
Congress can be said to have been aware of R.S. 2477 when it used and commented
on the term "roadless." If the more general term "road" in 1976 connoted to Congress
a way that had been "improved and maintained by mechanical means to insure
relatively regular and continuous use," this usage is consistent with the use in 1866
of the more specific term “highway” as a constructed and improved road that served
as a significant public connector.121
Administrative and Judicial Interpretation
of 1866 Act
The federal government historically seems to have adopted a position of benign
neglect of R.S. 2477 that probably reflects the acquiescence of the United States on
access issues during the settlement of the West and the pre-FLPMA absence of
coherent policies and authority for the management of the public lands. No
application or approval from the government was considered necessary to perfect an
R.S. 2477 grant, and the grant did not need to be recorded.
"Maintained" does not necessarily mean annual maintenance. "Mechanical means" -- Use
of hand or power machinery or tools. "Relatively regular and continuous use" -- Vehicular
use which has occurred and will continue to occur on a relatively regular basis. Examples
are: access roads for equipment to maintain a stock water tank or other established water
sources; access roads to maintained recreation sites or facilities; or access roads to mining
claims. Additional explanatory material also stated that: “A route is not a road if no tools --
either hand or machine -- have been used to improve or maintain it. The intent of the
definition of the phrase ‘mechanical means’ in the inventory handbook is that it refers to
hand machinery, power machinery, hand tools, or power tools. Sole use of hands or feet to
move rocks or dirt without the use of tools or machinery does not meet the definition of
‘mechanical means.’” Organic Act Directive No. 78-61, Change 2, at 4 (June 28, 1979).
121 The court in Sierra Club v. Hodel, 848 F.2d 1068, 1082 (10th Cir. 1988), overruled on
other grounds, Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir.
1992) stated that "[i]t 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." In
this instance, the court was considering an argument for current uniform federal rules as to
scope of all federal rights of way; a goal of the Federal Land Policy and Management Act
of 1976 (FLPMA). The court was saying that this goal does not guide interpretation of the
intent of the 1866 grant of highway rights of way. This is a different issue from whether a
plausible interpretation that harmonizes and gives full meaning to both the 1866 Act on
"highways" and to FLPMA, which both repealed the 1866 Act and dealt with "roadless
areas", should be preferred over an interpretation that does not encompass both statutes.
Although we know of no contemporaneous agency interpretation of the Act,122
an 1898 decision of the Secretary determined that dedication of highways along
section lines, without construction, did not complete a grant.123 A 1938 regulation
that was repeated over time simply stated that a highway grant became effective
"upon the construction or establishing of highways in accordance with the State
laws."124 We note, however, that this position retains the crucial statutory elements
of "construction" and "highways," and does not necessarily mean that state
interpretations that vitiate or eliminate these elements are valid. This issue will be
more fully discussed later.
Too much can be read into this silence of the federal government. In reviewing
the cases, it is important to distinguish those decided before FLPMA, when the
federal government had much less interest in the validity or existence of rights of way
of any type across its lands,125 and the statutory management authority over the
remaining public domain lands was piecemeal. For much of the time before the
enactment of FLPMA it may well simply not have mattered whether a particular right
of way was a highway that qualified under R.S. 2477, or was some other type of road
for which some other federal permission could readily be demonstrated or obtained,
since all forms of access and settlement were being encouraged.
Over the years, federal policies increasingly stressed retention of the public
lands in national ownership and the affirmative management of the remaining public
domain lands to conserve and protect the lands and resources. In 1976, FLPMA
expressly recognized a policy of retention of the remaining public lands,126 repealed
many of the piecemeal right of way statutes, including the 1866 Act, and replaced
them with a new comprehensive process for the permitting and conditioning of rights
Because R.S. 2477 was a federally enacted grant, its interpretation raises
questions of federal law.127 However, federal law may incorporate state law as part
of the law to apply, and the extent to which this may be true in the R.S. 2477 context
has caused much controversy. State law also clearly plays a role, especially in
evaluating whether and when a state accepted a right of way grant.
After the repeal of R.S. 2477, the Bureau of Land Management issued a
regulation permitting persons, or State or local governments who had constructed
122 For the Department’s overview of the history of administrative interpretation of R.S.
2477, see the United States Department of the Interior Report to Congress on R.S. 2477; The
History and Management of R.S. 2477 Rights-of-Way Claims on Federal and Other Lands,
123 26 L.D. 446 (1898).
124 Par. 55, Circ. 1237a, May 23, 1938; 43 C.F.R. §244.55.
125 See Wilkenson v. Dept. of Interior of United States, 634 F. Supp. 1265, 1274-1275 (D.
126 43 U.S.C. §§1701(a)(1); 1732(b).
127 Hughes v. Washington, 389 U.S. 290 (1967); United States v. Oregon, 295 U.S. 1, 27-28
public highways under the authority of R.S. 2477 to file maps with BLM showing the
locations of highways claimed to be valid existing rights. The regulation states that
the filings were not conclusive as to the existence or non-existence of the highways
(leaving that final determination to the courts), but were to facilitate management of
and planning for the public lands. As originally proposed, the regulation set out a 3-
year period for such filings, but this time limit was eliminated in the final regulations
In 1980, a letter written by a Deputy Solicitor of Interior opined on the standards
to be applied in determining whether R.S. 2477 highways were established.129 This
analysis noted the inconsistent judicial decisions on the subject and the fact that they
did not “come to grips” with the central issues of what was offered by Congress and
to whom, and how such rights of way were to be perfected. The opinion asserts that
whether a particular highway has been legally established remains a question of
federal law, and that use of the term “construction” means that some actual building
of a highway was necessary to comply with the terms of the grant. In this regard, the
opinion noted that not requiring actual construction would be potentially
unmanageable because otherwise innumerable jeep trails, etc. might qualify as public
highways.130 R.S. 2477 claimants, however, have argued that what might be
desirable for post-1976 federal land management purposes is not relevant to
determining what constituted valid pre-1976 acceptance of the 1866 grant, and that
Interior cannot retroactively set standards for establishing highways long since
The Ferguson opinion, in addressing the 1866 granting language, concluded that
“construction” must be construed as an essential element of the grant offered by
Congress or else Congress’ use of the term is meaningless and superfluous. “The
states could accept only that which was offered by Congress and not more.”132 The
Ferguson opinion further stated that construction ordinarily means more than mere
128 The initial proposed regulations for 43 C.F.R. §2802.3-6 at 44 Fed. Reg. 58106, 58118
(October 9, 1979) required the filing of maps within three years, noting that this filing would
protect holders against other claims or changes in land ownership. The final regulations
merely provided an opportunity to file within three years. 45 Fed. Reg. 44518, 44521,
6 and the map filings. 46 Fed. Reg. 39968-69 (August 5, 1981). The new final regulations
for 43 C.F.R. §2803.5 at 47 Fed. Reg. 12568, 12570 (March 23, 1982) provided an
opportunity for filing maps as a means of resolving road status, and no time limit was
129 Letter from Frederick Ferguson to Assistant Attorney General James Moorman, April 28,
1980 addressing R.S. 2477 issues (Ferguson opinion), reprinted in U.S. Department of the
Interior, REPORT TO CONGRESS ON R.S. 2477: THE HISTORY AND MANAGEMENT OF R.S.
130 Ferguson opinion, at 7.
131 Appellant counties opening brief in Southern Utah Wilderness Alliance v. BLM, Appeal
No. 01-4009 (10th Cir.) at 43; appeal dismissed as premature, 69 Fed. Appx 927, 2003 U.S.th
App. LEXIS 13208 (10 Cir. June 27, 2003).
132 Ferguson opinion, supra, at 9.
use, and entails actual building such as grading, paving, placing culverts, etc. to
prepare the highway for actual use.133 Given the statutory requirement of
construction, the phrase in the BLM R.S. 2477 regulations referring to construction
of highways ‘in accordance with the State laws’ “must mean that a state could
lawfully require more than mere construction of the highway in order to perfect the
R.S. 2477 grant; i.e., ‘construction’ is the minimum requirement of federal law but
the State could impose on itself additional requirements in order to perfect a grant
under R.S. 2477.”134
In the initial regulations of the Department implementing the new FLPMA Title
V rights of way, the Department called upon persons "who had constructed public
highways" to submit maps locating such highways for notation on the records of the
Department in order to facilitate the new federal planning and management mandated
by FLPMA. Here again, the Department continued to use the same phrasing – that
which is required by the relevant statute. In addition, the Department incorporated
the concept of road improvement by mechanical means set out in a FLPMA
committee report as the analysis of what could constitute a ‘road’ under §603 of
FLPMA, pertaining to roadless areas and wilderness reviews. Again, to require less
for a right of way to qualify as a highway than is required to be a road arguably is
A Departmental Policy was issued in 1988 that differed significantly from the
Ferguson Opinion.135 According to the June 1993 Task Force Report, circumstances
in Alaska drove the new policy on R.S. 2477: "The 1988 DOI policy, attempting to
account for the perceived uniqueness of the Alaska situation, put forward loose
criteria for R.S. 2477 claims and applied these criteria to all federal lands under DOI
jurisdiction in all 30 public land states."136 Among the 1988 criteria was one that set
out minimal construction requirements and stated that removal of rocks and
vegetation by hand, or the mere passage of vehicles might be sufficient.
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 of the way, or137
filling low spots, etc., may be sufficient as construction for a particular case.
To the extent this statement means that the mere moving of rocks and vegetation
by hand qualifies as construction, it could be argued that this does not comport with
Congress's intent in granting rights of way for the construction of principal or
significant roads. However, some argue that it does because, depending on the
133 Ferguson opinion, supra, at 5-7.
134 Id. at 11.
135 Departmental Policy Statement on Section 8 of the Act of July 26, 1866, Revised Statute
136 Task Force Report, at 23.
137 1988 Policy Statement at 2.
terrain and the time the right of way was established, the mere repeated passage of
traffic with only slight modifications of the roadbed could suffice.
The 1988 Policy also stated that a qualifying highway could be a trail or a
footpath, but did not include any analysis to support that position.
The 1994 proposed R.S. 2477 regulations defined “construction” as
An intentional physical act or series of intentional physical acts that were
intended to, and that accomplished, preparation of a durable, observable, physical
modification of land for use by highway traffic. Where State law, in effect on
the latest available date, further limits the definition of construction, these limits
“Highway” was defined as:
A thoroughfare that is currently and was prior to the latest available date used by
the public, without discrimination against any individual or group, for the
passage of vehicles carrying people or goods from place to place. Where State
law, in effect on the latest available date, further limits the definition of highway,
these limits also apply.
“Public lands not reserved for public uses” and “unreserved public lands” were
also defined at length, and in most pertinent part were stated to not include:
(I) lands that were set aside, dedicated for specific purposes, withdrawn, or
otherwise reserved from disposition under the public land laws by an Act of
Congress, Presidential Proclamation or Executive Order, Secretarial Order, or
classification actions authorized by statute that specified that the land would be
used for a specific purpose or that prevented certain uses.
On January 22, 1997, then Secretary of the Interior Bruce Babbitt revoked the
1988 Policy and established a new, interim policy. Noting the congressional
prohibition against final regulations going into effect without congressional approval,
the Secretary instructed BLM to “defer any processing of R.S. 2477 assertions except
in cases where there is a demonstrated, compelling, and immediate need to make
such determinations.” BLM could, however, accept claims and make
recommendations to the Secretary and in doing so was to “examine all available
documents and maps and perform an on-site examination to determine whether
construction on the alleged right-of-way had occurred prior to the repeal of R.S. 2477
on October 21, 1976.” No definition of construction was set out. In addition, the
agency was to evaluate whether the alleged right of way constitutes a highway, which
was stated to be “a thoroughfare used prior to October 21, 1976 by the public for the
passage of vehicles carrying people or goods from place to place.” “In making its
recommendations, the agency shall apply state law in effect on October 21, 1976, to
the extent that it is consistent with federal law.” The agency was not to recommend
approval of claims that did not comply with the requirements of applicable state law.
A proposal for legislation was also sent to Congress in August of 1997 that
established a procedure for determining the validity of claimed R.S. 2477 rights of
way and contained definitions. “Construction” was defined as:
An intentional physical act or series of intentional physical acts that were
intended to, and that accomplished, preparation of a highway by a durable,
observable, physical modification of land for use by highway traffic.
A thoroughfare that was prior to the latest available date used by the public,
without discrimination against any individual or group, for the passage of
vehicles carrying people or goods from place to place.
“Public lands not reserved for public uses” or “unreserved public lands” were
defined in somewhat awkward syntax as meaning:
lands owned by the United States that were available and open to the public
under various public land laws that provided for disposition to the public, but
lands that had not yet been set aside, dedicated, withdrawn, reserved, settled,
preempted, entered, appropriated, or disposed of, or on which claims had not
As part of the current litigation in Southern Utah Wilderness Alliance v. Bureau
of Land Management (SUWA v. BLM),138 the court allowed BLM to make initial
determinations as to the validity of the rights of way claimed by several counties in
Utah.139 For purposes of making those determinations, BLM applied the following
with respect to construction:
Some form of mechanical construction must have occurred to construct or
improve the highway. A highway right-of-way cannot be established by
haphazard, unintentional, or incomplete actions. For example, the mere passage
of vehicles across the land, in the absence of any other evidence, is not sufficient
to meet the construction criteria of R.S. 2477 and to establish that a highway140
right-of-way was granted.
Evidence of actual construction may include such things as road construction or
maintenance records, aerial photography depicting characteristics of physical
construction, physical evidence of construction, testimony or affidavits affirming
that construction occurred, official United States Government maps with legends
showing types of road, as well as other kinds of information.
The court also indicated that as part of the validity determinations performed for
the court, BLM built upon the definition of “highway” contained in the 1980
Ferguson Letter at 8 which states” [a] highway [for purposes of R.S. 2477] is a road
freely open to everyone; a public road:”
138 147 F. Supp. 2d 1130 (C.D. Utah, 2001), appeal dismissed as premature 69 Fed. Appx
139 Interestingly, the counties in this litigation, who are among the counties who are expected
to apply for disclaimers for R.S. 2477 rights of way, argue that BLM has “no authority to
conduct determinations on R.S. 2477 roads at all” because there are no rules or regulations
or formal procedures in place for doing so and none have been authorized by an Act ofth
Congress. Brief of Defendant/Appellants in Appeal No. 01-4009 (10 Cir.) at 16.
140 Id. at 1138-1139.
The claimed highway right-of-way must be public in nature and must have served
as a highway when the underlying public lands were available for R.S. 2477
purposes. It is unlikely that a route used by a single entity or used only a few
times would qualify as a highway, since the route [must have] open public nature
and uses. Similarly, a highway connects the public with identifiable destinations
or places. The route should lead vehicles somewhere, but it is not required that
the route connect to cities. For example, a highway can allow public access to
a scenic area, a trail head, a business, or other place used by and open to the
public. Routes that do not lead to an identifiable destination are unlikely to141
The position of the Department consistently has been that the elements set out
in the statute must be complied with: namely that there must be construction of a
highway across unreserved public lands.142 However, the details of the Agency's
articulation of these elements have changed over the years, especially in the 1988
Policy, which interpreted construction very broadly.
The contemporaneous and reasonable interpretation of the agency entrusted with
implementing a law, when arrived at through formal rulemaking or adjudication, is
entitled to deference.143 However, as noted, there does not appear to have been any
contemporaneous interpretation adopted by the Department. Rather, it appears that
except for the 1898 decision that mere declarations of highways along section lines
without actual construction did not constitute completion of the grant, the 1938
regulation, the 1959 Solicitor's Opinion on mining access, and a few other pre-
FLPMA documents, the Department's analysis has been almost entirely post-FLPMA.
The Department seems to have consistently taken the position that a prospective
grantee must comply with the elements of the granting law, but the arguably minimal
standards of the 1988 policy call into question the meaning of the construction
Until the 1993 study, the Department of the Interior does not seem to have
extensively analyzed the meaning of “highway” in the 1866 Act,145 or to have
correlated that definition either with the statutory "construction" requirement, or with
the previous congressional enactments on highways, the Department's own analyses
of mining access rights discussed previously, or with the use of "road" for purposes
141 Id. at 1143.
142 See 26 L.D. 446 (1898); Bureau of Land Management Manual, Part 2801.48 (evolving
through Release 2-152, 2-229, 2-263, and 2-266); Letter and Memorandum from Deputy
Solicitor Ferguson to Ass't Attorney General Moorman, April 28, 1980; 1988 Policy
Statement; 1997 Policy Statement; and guidance provided for determinations that are the
subject of litigation in the Southern Utah Wilderness Alliance v. Bureau of Land
143 Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Other
agencies that manage reserves of various types that were created after the establishment of
such rights of way also are faced with these issues, but BLM, or its predecessor the General
Land Office, usually was the managing agency at the time the rights of way were created.
144 See 1988 Policy Statement at 2.
145 See Ferguson opinion, supra, at 8.
of wilderness review. Agency interpretations that are promulgated long after the act
in question, that are not contained in rulemaking, or that are inconsistent are not
entitled to the same deference as is contemporaneous rulemaking,146 an approach that
may apply to agency interpretation of R.S. 2477. If so, then arguably agency R.S.
The Appendix to this report summarizes the various iterations interpreting the
key terms of the 1866 grant.
Judicial interpretation does not provide conclusive precedent on some important
R.S. 2477 issues for several reasons. R.S. 2477 is a federal statute and must be
interpreted as a matter of federal law.148 However, federal law may at times apply
state law, and many argue that this is the case in the R.S. 2477 context. In particular,
many claimants who feel that state law controls point to the early Department of the
Interior regulation that stated that a highway grant became effective “upon the
construction or establishing of highways in accordance with State laws,” and to
numerous cases holding that state law controls. Others assert that while state law
controls as to state concerns, it cannot controvert the basic elements of the federal
grant. Many of the cases predate the enactment of FLPMA, which both repealed R.S.
2477 and put in place new federal public land policies, and therefore date to a time
when the federal government was not concerned about the rights of way grants. In
addition, the cases were typically in state courts and the federal government was not
There appear to be two levels of inquiry that at times become merged: 1) what
actions are necessary to create a public highway under state law for purposes of
determining relative property rights, and whether a state or political subdivision of
a state has incurred obligations to maintain and be liable for the highway; and 2)
whether a public highway established under state law is also always a highway under
146 Secretary of the Interior v. California, 464 U.S. 312, 320 n. 6 (1984); Christensen v.
Harris County, 529 U.S. 576 (2000).
147 Christensen v. Harris County, 529 U.S. 576, 586 (2000), quoting Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944).
148 The Department of Justice in an amicus brief submitted in 1986 in Alaska Greenhouses,
Inc. v. Anchorage, (Civ. A85-630, D. Alaska) stated: "In any event, it is not at all unusual
for federal courts to have to interpret federal statutes in a manner inconsistent with prior
state law which remained unchallenged for a long period of time by federal authorities." See
also Federal Power Commission v. Oregon, 349 U.S. 435 (1955) in which the Supreme
Court held that Congressional language on severance of water rights on federal public lands
(including a section of the 1866 Act at issue here), which cases in state courts had concluded
meant that all use of water in the West would be governed by state law, did not apply to
federal reservations and hence did not bind the United States as to its own use of water; and
United States v. California, 332 U.S. 19, 39-40 (1947).
Legitimate issues remain as to the proper interpretation and weight to be given
state court holdings on the establishment of R.S. 2477 rights of way. The following
section discusses some of the more important issues and the most frequently cited
cases involving R.S. 2477.
Role of State Law. The most fundamental and controversial issue is the
proper role of state law in validating the establishment of R.S. 2477 rights of way.
Clearly there is a role for state law to play, but the proper extent of that role is not
clear. The grant of highway rights of way under the 1866 Act and the interpretation
of that Act raise questions of federal law.149 A federal grant usually is construed in
favor of the government. However, this strict interpretation has been held to be
rebutted with respect to many grants made to assist in the settlement of our country,
because of the great public interests intended by those grants. Courts have applied
both approaches with respect to rights of way.150
Clearly, federal law may incorporate or apply state law in some instances, and
the 1866 Act, at least to some degree, is such an instance. It does not specify how the
highway grant is to be accepted by a state or locality, or the scope of the rights
granted, and state law can play a significant role in defining these and certain other
aspects. State law is controlling as to state concerns, such as relative rights among
parties within the state, and certainly, state law may validly supply details or
additional requirements unique to a particular state – for example with respect to
procedures for accepting the highways as public for purposes of maintenance and
liability. But the extent to which R.S. 2477 may fairly be interpreted as adopting
state law as to the elements of the grant itself is the principal controversy – whether,
for example, state law can eliminate or otherwise controvert one or more of the terms
of the federal grant.
The same group of cases is frequently cited for the proposition that state law
controls – especially with respect to the fact that mere passage without construction
can suffice to satisfy the grant. However, as will be discussed, it appears from an
examination of the principal state cases, that the state courts sometimes indulged in
dicta (non-binding judicial discussion) and the pronouncement of broadly worded
rules not warranted by the facts before the court. A close examination of the facts of
these cases often indicates that the roads in question clearly were constructed
highways and, therefore, the broad generalizations or rules for which the cases are
cited were not in fact the necessary holdings of the court, and hence their value as
precedent arguably is sometimes overstated. In addition, the cases sometimes are
cited for rules broader than those actually formulated by the courts. Later cases then
typically cite the earlier cases as precedent without further analysis. For these
reasons, the law surrounding many of R.S. 2477 issues continues to be debated.
149 Hughes v. Washington, 389 U.S. 290 (1967); United States, v. Oregon, 295 U.S. 1, 27-28
150 See, e.g., cases on railroad grants, such as Denver & R.G.R. Co., 150 U.S. 1 (1893);
Oregon & C. R. Co. v. United States, 238 U.S. 393 (1915); but see also, e.g., Burlington, K.
& S.W.R. Co. v. Johnson, 38 Kan. 142, 16 P. 125 (1887).
The principal issue is whether state law controls such that it may contradict or
even eliminate the express federal statutory elements of the grant offered. Other
statutory provisions may shed light on this question. For example, the portions of the
1866 Act that pertain to mining and mineral rights expressly recognize and permit
state and local law and even local customs to apply if they are "not inconsistent with
the laws of the United States," language missing from § 8 of the 1866 Act. Section
8 of the Reclamation Act of 1902 expressly states that the Secretary of the Interior
shall comply with state laws in carrying out that Act, but is also silent as to
consistency. Nonetheless, the Supreme Court held that state law cannot contravene
that federal law or frustrate its federal purposes.151 Arguably, state law may apply to
elaborate on R.S. 2477 and to indicate when a state has accepted the federal grant,
but cannot contravene its terms. The highway grant is succinct, but does contain
discernible elements: the grant is for the purpose of 1) the construction of 2)
highways 3) across public lands that 4) are not reserved at the time of acceptance.
One of the principal cases cited for the proposition that state law determines
when the offer of a grant has been accepted by the construction of highways is an
Arizona case.152 This "rule" is correct with reference to that state's law, since Arizona
law required both construction and designation of public highways by official
action.153 Indeed, the rule would always be correct -- that state law determines when
the offer of a grant has been accepted by the construction of highways so long as state
law does not contravene the two elements of construction and highways,154 and so
long as the lands across which a highway runs were public lands not reserved at the
time the highway was constructed.
The majority of cases interpreting R.S. 2477 have been state cases not involving
the federal government. An important case that did involve the United States that is
cited for the proposition that state law controls is the "Burr Trail" or Hodel case,155
but the holding in this case may not be as broad as is sometimes asserted. On appeal,
the case involved only the scope of an R.S. 2477 right of way, since the valid
establishment of the road was not before the court, this point having been conceded.
Issues as to establishment could involve whether the road was constructed
151 California v. United States, 438 U.S. 645 (1978).
152 County of Cochise v. Pioneer National Title Ins. Co., 115 Ariz. 381, 384, 565 P.2d 887,
890 (Ariz. Ct. App. 1977). The court actually was addressing whether an R.S. 2477
highway could be established contrary to state law, a question it decided in the negative.
153 Ariz. Rev. Stat. §§2736, 2760 (1887).
154 See Warren v. Chouteau County, 265 P. 676 (Mt. 1928), in which the Supreme Court of
Montana stated that a R.S. 2477 grant of a right of way for highway purposes over the public
domain does not become operative until accepted by the public by the construction of a
highway according to the provisions of the laws of the state. In Moulton v. Irish, 67 Mont.
504, 218 P. 1053 (1923), the court found that the road in question in that case "was never
actually opened to travel, and was never traveled by the general public, nor was there a
formal order made by the board declaring it a public highway, as required in this state...."
Id., at 680.
155 Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988), overruled on other grounds in
Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir. 1992).
adequately, was on lands unreserved at the time of establishment, or was a highway
within the meaning of the statute; issues as to scope could involve the width and
range of permissible uses and improvements that can be said to have been included
within the rights of way granted. The specific issue before the court was whether a
proposed subsequent widening of the road was reasonable and necessary under Utah
law, and within the right that was granted. Although the holding of the court in
Hodel does not apply to establishment, it is sometimes cited as precedent on that
The appellate court in Hodel considered the 1980 Ferguson opinion letter and
rejected a reading of that letter that would result in no role for state law. The court
then correctly noted that the second possible reading of the letter -- that it speaks only
to what is necessary to perfect an R.S. 2477 right -- did not help appellant because
only the question of scope was before the court.156 The court then stated:
The third possible reading of this letter would return us to BLM's regulations: as
a matter of federal law, state law has been designated as controlling. This third157
reading, we think, is most consonant with reason and precedent.
Arguably, this assertion is further support for the conclusion that state law
controls. On the other hand, given the language that immediately precedes this quote,
it could be argued that the court held that state law is controlling as to the scope of
an R.S. 2477 right of way. To the extent that the opinion might be read as holding
that state law is controlling as to establishment, one can argue that that is a strained
reading of the Ferguson letter158 and the 1866 Act, and is dicta because it is an
interpretation not necessary to the decision of the court.
The court also stated that the federal regulations "heavily support a state law
definition."159 Yet, as noted above, the federal regulations retain the three essential
elements of the statute: namely construction of highways on unreserved lands in
accordance with state laws. It is not clear from the face of the regulation that state
law inconsistent with these requirements could result in a valid acceptance of the
The valid existence of an R.S. 2477 road was in controversy in the lower court
in Hodel. The district court had held that under R.S. 2477, a right of way could be
156 Hodel, at 1081.
158 See Ferguson letter, supra, at 9-11, wherein the author makes it clear that it is his opinion
that state law cannot validly conflict with the statutory elements, and that the 1938
regulations should not be interpreted as meaning that state law contrary to the statutory
elements may prevail.
159 Hodel, at 1080.
160 See the earlier decision of the Secretary that dedication of highways along section lines,
without construction, did not complete the grant (26 L.D. 446 (1898)) and the discussion of
this point in the Ferguson Opinion.
established by public use under terms provided by state law.161 The court cited two
other federal cases as authority for this proposition. In one of them, United States v.
9,947.71 Acres of Land, the court concluded that a mine access road was a qualifying
R.S. 2477 public highway that resulted in a private property interest in the user that
was compensable under the 5th Amendment, even though the road definitely was not
a public highway under state law.162 This case seems anomalous as to this point and
the case did not probe what construction was necessary to establish an R.S. 2477
right of way, but did note facts that indicated actual construction had occurred.
The Wilkenson case was also cited by the district court for the rule that state law
governs establishment of R.S. 2477 highways notes that at the time of that decision
(1986), there was no direct and controlling precedent for the legal conclusions
reached.163 It is important to note that the parties in Wilkenson "were in agreement"
that the right of way statute was to be applied by reference to state law to determine
when the offer of the grant has been accepted by the "construction of highways."164
The court then pointed out that under Colorado law, the term highways could include
footpaths, that the use of a road by a single person could suffice, and that mere use
of a highway without construction was "sufficient."165 By implication, the court
seems to have meant that this state law was sufficient under R.S. 2477, even if state
law eliminated one or more of the federal requirements, such as actual construction,
or a highway being public. However, the court also probed the road segments in
question and concluded that construction on the "Serpent's Trail," part of the highway
connecting the two towns in question that was used by people and livestock, was
completed before inclusion of the lands in a federal national monument. The court
also noted that the roads in question were described as surveyed and actually built;
visited by approximately one thousand people a year at the turn of the century;
traveled by wagons; built in part under a county contract; completed with volunteer
labor, financial contributions from Glade Park residents, and payments from the
County; and served as connectors between towns and the next state.166 These facts
appear to satisfy the elements of the federal statute,167 and therefore, the expansive
comments of the court could be characterized as dicta.
While the district court opinions in Wilkenson and Hodel enunciated the rule
that state law governs even as to establishment, neither case had before it an instance
161 Sierra Club v. Hodel, 675 F. Supp. 594, 604 (D. Utah 1987), citing Wilkenson v. U.S.
Department of Interior, 634 F. Supp. 1265, (D. Colo 1986); and United States v. 9,947.71
Acres of Land, 220 F. Supp. 328 (D.Nev. 1963).
162 220 F. Supp. 328 (D.Nev. 1963).
163 Wilkenson v. Dept. of Interior, 634 F. Supp. 1265, 1280 (D. Colo. 1986).
164 Id. at 1272.
166 Id. at 1268-1269, 1272.
167 One segment was disqualified because the construction was after the establishment of the
Monument. Id. at 1273. This fact raises the interesting question of why state law might be
seen as validly eliminating the construction requirement of R.S. 2477, but not the
requirement that a right of way be across unreserved lands.
where both the relevant state law purported to eliminate the R.S. 2477 statutory
elements and the road in question actually failed to qualify under the R.S. 2477
The state law applied by the courts varied widely. Some of the western
territories and new states expressly addressed the issue of roads, especially after the
enactment of the 1866 grant. Some state statutes clearly articulated how highways
were to be established and hence how the R.S. 2477 grant was to be accepted. Where
state law was clear, there are few disputes today as to which roads qualify under R.S.
2477. See, for example, the early Arizona law that provided that all roads and
highways in the territory of Arizona which were located as public highways by order
of the board of supervisors, or recorded as public highways, were declared to be
public highways.168 Many of these laws provided that the counties had the authority
to take actions that made rights of way public highways.
The law of other states is not as clear, and hence controversies now exist as to
whether a valid R.S. 2477 right of way exists. In Utah, for example, evidently there
was no formal procedure for accepting the highway grant and the status of roads in
that state consequently is unclear. Some states addressed roads in several ways,
speaking both to establishment of highways, and to roads serving individual
The available federal case law is relatively sparse and, although general rules
as to the applicability of state law are repeated, the precedent on the issue arguably
is not definitive and clear for the reasons discussed. While the 1866 Act permits the
application of state law as a general matter,170 and state law at times has been
articulated as including generous standards for when an R.S. 2477 grant was
accepted, whether state law can contravene the federal statutory requirements remains
If the governing rule is articulated as being that a valid R.S. 2477 highway is
one that is both accepted under the laws of the state in which it is located and also
168 Ariz. Rev. Stat. §§2736, 2760 (1887). Ariz. Rev.Stat. §§2740 and 2741 (1887) required
public highways to be kept clear from obstructions and in good repair, with graded banks,
bridges and causeways as necessary, and authorized the use of gravel, dirt, timber, and rock
for improving the roads.
169 States might also separately address the issue of other roads. In South Dakota roads that
developed simply by dint of public use could be public highways if the local government
accepted them as such, worked on them and kept them in repair as such for a period of 20
years. Mere usage of a way by the public did not suffice. §§ 31-3-1 and 31-3-2, S.D.
Codified Laws (1984 Rev.). Other (non-public highway) roads could be established in other
ways: a 1909 law provided relief for owners of isolated tracts of land, enabling them to
obtain a right of way across adjacent lands to reach a public highway, and providing for the
payment of compensation to the landowners yielding up the easement. Ch. 108, Laws of
1909, Compiled Laws of S.D.(1910). In many states, private property interests also could
be obtained by adverse possession against the property of another. § 47-0603, N. D. Rev.
Code of 1943.
170 Because R.S. 2477 was repealed in its entirety in 1976, it is state law in effect on that
date that is applicable.
meets the federal requirements, the disparate body of state cases can be seen as
essentially harmonious, and actual areas of conflict with the federal requirements
appear to be few. This interpretation is also consistent with the Department's earliest,
and most of its subsequent interpretations.
Is Construction Necessary to Comply with the Grant? The necessity
for actual "construction" is the principal focus of the issue of the proper role of state
law in articulating acceptance of the 1866 grant offer, and has already been addressed
in part in the preceding general discussion of the role of state law. As was also
discussed, the ‘plain meaning’ of § 8 of the 1866 Act (R.S. 2477) would seem to
require actual construction. While there is no available legislative history of § 8, §
9 of the same Act (R.S. 2339) addressed “construction” of ditches. As to the use of
the term construction in § 9 of the 1866 Act, the Supreme Court has explained that
“[i]t is the doing of the work, the completion of the well, or the digging of the ditch”171
that complied with the statute. The United States in the SUWA v. BLM appeal
asserted that it is a basic canon of statutory construction that identical terms within172
an act have the same meaning. However, the counties argue that the two instances
are not analogous because you cannot have a well or ditch without construction, but
in some areas you can have a road without construction and that “where the subject
matter to which the words refer is not the same in the several places where they are
used, or the conditions are different... the meaning well may vary to meet the
purposes of the law.”173
An important situation in which the construction issue arises is in the context
of section line rights of way. The American surveying system did not provide for
road corridors along section lines. In contrast to the American system, the Canadian
system expressly did provide for road corridors along all section and township
lines.174 Some states adopted the Canadian approach and specified that rights of way
existed along section lines. South Dakota law states:
There is along every section line in this state a public highway located by
operation of law, except where some portion of the highway along such section
171 Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 18-19 (1896),
quoted in Brief of the Federal Appellee, No. 01-4173 at 54, who also cited Reno v. Koray,
515 U.S. 50, 58 (1995) that it is a “basic canon of statutory construction that identical terms
within an Act bear the same meaning.”
172 Brief of the Federal Appellees in No. 01-4173 (10th Cir.) at 54; appeal dismissed as
premature, 69 Fed. Appx 927, 2003 U.S. App. LEXIS 13208 (10th Cir. June 27, 2003)..
173 Opening Brief of Defendants-Appellants in Appeal No. 01-4009 at 41, quoting Atlantic
Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932).
174 "The Dominion lands shall be laid off in quadrilateral townships, containing thirty-six
sections of one mile square in each (except in the case of those sections rendered irregular
by the convergence or divergence of meridians as hereinafter mentioned), together with road
allowances of one chain and fifty links in width, between all townships and sections." (Act
of May 15, 1879, 42 Victoria, Chap. 31.)
line has been heretofore vacated or relocated by the lawful action of some175
authorized public officer, board, or tribunal.
If a territorial or state government enacted such a law, the strips along section
lines were considered as dedicated for highway purposes and subsequent patentees
took title subject to these dedicated rights of way. Eventually, most of these roads
were actually constructed, relocated, or vacated in accordance with state law. If
section line highways, or other public highways dedicated by operation of law, were
not constructed by the time the federal R.S. 2477 grant was repealed, what is the
status of such paper highways? Are they valid existing rights within the intent of
FLPMA simply because they were segregated and dedicated "for highway purposes",
or did they need to have been actually constructed by the time of the rescinding of the
federal grant? The issue is an important one, because some states may press such176
The cases usually cited as authority for the conclusion that section line right of
way dedications suffice as acceptance of the R.S. 2477 grant are pre-FLPMA cases
between a state or state subdivision and a citizen, not between the federal government
and a state. In this context, it is reasonable that the state dedication of the lands is
effective against a subsequent titleholder of the lands crossed by a right of way, even
if the highway was not yet constructed when that person took title. Under state law,
the dedication is the lawful first step of a highway construction process that could be
completed over time, and that dedication is enough to impose a state interest on the
175 §31-18-1, S.D. Codified Laws (1984 Rev.). The width of these highways is stated as
being 66 feet. Id §31-18-2.
176 Alaska evidently may claim section line rights of way even if they were not constructed
by 1976, because so much of the state was not even surveyed at that time, and the state has
extensive infrastructure needs as yet unmet that were served by R.S. 2477 in other states.
See the Alaskan state report: Senate Transportation Committee R.S. 2477 Task Force, Phase
II Report 67 (1986) citing AS 19.10.010 (1975). The Senate Committee Task Force Report
also gives "highways" a generic definition that includes paths, trails, walks, etc. Id. at 86.
In enacting the Alaska National Interest Lands Conservation Act (P.L. 96-487, 94 Stat.
2374)(ANILCA), Congress took note of the undeveloped status of Alaska's transportation
system and provided special rights of way provisions for crossing federal conservation areas
in that state. The Committee reports do not indicate that Congress considered R.S. 2477 as
providing any prospective help on the issue.(See, S. Rep. No. 95- 1300 at 53, 249 (1978) and
H.R. Rep. No. 95-1045, Part 1, at 207, 243 (1978).)
During the FLPMA debates there was a discussion between Senators Stevens of
Alaska and Haskell of Colorado about whether Alaska could continue to claim roads created
from trails that "have been graded and then graveled and then are suddenly maintained by
the state" or which in fact had been built, (emphasis added) but which might not have been
formally declared to be public highways. Sen. Haskell responded that formal perfection was
not necessary if the existing use was recognized as a public highway under state law. 120
Cong. Rec. 22283-22284 (July 8, 1974). The roads being discussed appear to be constructed
and hence were not unconstructed section line roads.
Possible solutions for the special needs of Alaska that may not be adequately met by
Title XI of ANILCA and Title V of FLPMA present issues beyond the scope of this paper.
property that is good against subsequent titleholders.177 However, this is not to say
that the paper dedication is effective against the federal government if the offer of the
federal highway grant is rescinded before construction has been completed. A better
argument appears to be that the roads must have been constructed to comply fully
with the terms of the federal highway grant, and if they were not at least partially
constructed by the time the grant offer is repealed, then the opportunity to comply
with the grant offer was extinguished upon repeal. That section line dedications
alone, without construction, do not complete grants has long been the consistent
position of the Department,178 especially if construction was not even begun before
repeal of the granting statute.179
Another difficult question is whether mere use by the public can ever suffice to
establish a highway under R.S. 2477. Again, some of the cases cited for the
proposition that public use alone can result in a public highway appear to be
overstated. For example, Central Pacific Railway v. Alameda County is frequently
cited for the proposition that valid R.S. 2477 highways could be established by the
mere passage of wagons. The court in that case noted: "The original road was
formed by the passage of wagons, etc., over the natural soil...."180 However, the
Court also had noted that "A public highway ... was laid out and declared by the
county in 1859, and ever since has been maintained. During that time it has served
as one of the main arteries of travel between the bay regions of southern Alameda
County and the Livermore Valley."181 Therefore, regardless of how the road
originated, it apparently did qualify under R.S. 2477, and the “rule” for which this
case is often cited appears to be either overstated or dicta.
There are actually two issues involved in some of the cases that may be
confused: 1) whether public use without some formal acceptance by a governmental
entity may nonetheless result in a "public highway" within a particular state; and 2)
whether a highway established merely by public use without further improvement or
construction of the roadway may qualify under R.S. 2477.
177 Tholl v. Koles, 70 P. 881 (Kan. 1902); Girves v. Kenai Peninsula Borough, 536 P. 2d
even states with section line statutes view the effect of such acts differently depending on
the reason for inquiry. In Pederson v. Canton Township, 34 N.W. 2d 172 (S.D. 1948), the
South Dakota Supreme Court held that although the section line statute constituted a
dedication of section line highways, if a part of a section line highway was not actually
constructed, there was no duty for the County government to warn motorists under an
abandoned highway statute because in fact there never had been a highway.
178 26 L.D. 446 (1898); Ferguson Opinion, supra; 1988 Policy Statement, supra, at 2.
179 Even the more lenient 1988 Policy Statement required that construction had to have been
initiated prior to repeal and actual construction had to have followed within a reasonable
180 284 U.S. 463, 467 (1932).
181 Id. at 465-466. (Emphasis added.) This case also reinforces the argument that the roads
intended as qualifying under R.S. 2477 are significant roads considered public highways.
The first point may be answered wholly by the statutory and case law of the state
involved. Some of the cases may not word the issue correctly – as for example, by
discussing "adverse possession" against the United States, which does not lie.182
Under the laws of some states, public use of sufficient type over sufficient time may
result in the creation of a public highway in the first sense – recognition under state
law and/or acceptance by a state or local governmental entity for maintenance and
liability. State law might also conclude that a valid R.S. 2477 highway resulted, not
because citizens are adversely possessing title against the United States, but because
if public use of a certain type and duration results in acceptance of a "public
highway" under state law, this is equated with adequate acceptance of the federal
However, this latter approach presents the second issue– if public use may result
in the creation of a public highway under state law, does the resulting highway
qualify under federal law even if the road was not "constructed?" In some of the
more arid parts of the country, repeated passage may compact a roadbed capable of
sustaining regular use. If a road that was never improved or maintained nonetheless
served as a well-traveled transportation corridor between towns, and was recognized
as a public highway under state law, could such a road qualify under R.S. 2477?
Here too, in the leading cases usually cited, the roads in question in fact appear
to have satisfied all of the elements of the 1866 Act. In the first Hatch case, for
example, the road served several towns and several purposes, and citizens had spent
considerable private funds installing ditches, bridges, and dugways.184 Hatch II held
that public use alone (as public use was described in (Hatch I), without any official
action by a governmental entity could constitute valid acceptance of an R.S. 2477
right of way, because Wyoming recognized a common-law doctrine of establishment
of highways by user. In this case, the court was focusing on whether any official
acceptance was necessary under Wyoming law at that time to constitute acceptance
of the federal grant offer, and concluded that it was not. A recent decision of the
Wyoming Supreme Court quoted from Hatch II with approval for the principles that
state law controls the establishment of R.S. 2477 rights of way, and that use alone
suffices – though the court held that a highway right of way in that case did not exist
because later Wyoming statutes did require official acceptance.185
In Lindsay Land & Live Stock case too, a Utah case that has also been cited for
the proposition that public use without construction is sufficient under R.S. 2477, the
road in question appears actually to have qualified under R.S. 2477. The court in that
case actually worded the rule as stated in Hatch, and noted that improvements had
been made even without public funds, that the road connected points between which
there was considerable public travel, and that the use made of the road was as general
182 United States v. California, 332 U.S. 19, 39-40 (1947); Texas v. Louisiana, 410 U.S. 702,
183 Hatch Brothers Co. v. Black, 165 P. 518 (Wyo. 1917), affirmed on rehearing, 171 P. 267
(1918); Lindsay Land & Live Stock Co. v. Churnos, 285 P. 646 (Ut. 1930).
184 Hatch, supra.
185 Yeager v. Forbes, 2003 WY 134; 2003 Wyo.LEXIS 164 (Wyo. October 24, 2003).
and extensive as the situation and surroundings would permit had the road been
formally laid out as a public highway by public authority.186 Therefore, Lindsay does
not appear to stand for the proposition that no construction or improvement of a road
is necessary to construct a public highway under the terms of R.S. 2477. This was
not the rule stated in the case and was not the situation before the court.187
It seems unlikely as a factual matter that a road could be both totally
unimproved and still have supported until 1976 the kind of regular and continuous
use as a significant connector that qualifies as a highway.188 Even in arid areas,
ditches and grading may be necessary at certain places to cope with seasonal rains.
It also seems unlikely that a road would remain totally unimproved once it eventually
became formally accepted as a public highway and maintained by the local
government, circumstances that typically occurred well before 1976.
This is significant because in considering what alternatives may now exist for
processing R.S. 2477 claims, it has been said that any attempt to adhere to the
language and requirements of the 1866 Act would be disruptive of long established
expectations. Yet, it may well be that an analytic approach of asking both whether
a right of way is a public highway under state law, and whether the road is a
qualifying highway under federal law, in fact will prove to be consistent with most
of the case law to date.
As discussed above, the Department of the Interior has consistently maintained
that some construction must have taken place, although at times the Department has
construed “construction” broadly, as in the 1988 Policy.
SUWA v. BLM recently focused again on the proper interpretation of R.S. 2477
and the earlier cases. After reviewing the plain meaning of the statute’s words as
evidenced in various dictionaries, the federal district court for the central district of
Utah upheld BLM’s interpretation of “construction” and “highway” as consistent
with these definitions and Congress’s objective for federal land use policy.189 (See
above and Appendix I for the text of the definitions.) The counties, who also are
defendant/appellants on appeal, asserted that under Utah law, “construction” could
be accomplished by “continued use” and nothing more, and that this law should
control. In response, the court probed the use of state cases, noted the disparity
between some of the broad pronouncements and the actual facts involved in the
cases, and summarized many recent opinions that cited them. This summary shows
why the applicability of state law cases continues to be controversial, with arguments
to be made on both sides:
186 Lindsay, n. 183 supra, at 648.
187 Most of the Utah cases following Lindsay also specifically indicate that the road in
question was constructed or improved.
188 See n.118 and accompanying text, supra, for a discussion in a committee report on
FLPMA to the effect that unimproved ways in arid areas were not roads under FLPMA.
189 SUWA v. BLM, supra at 1139.
... While past interpretations by state courts are not binding on a federal court
interpreting a federal statute, several federal courts have looked to this state
interpretation for guidance. In Sierra Club v. Hodel, 675 F. Supp. 594 (D. Utah
1987), the court ruled that under R.S. 2477, a right of way could be established
by public use under terms provided by State law.” Id. at 604. Since the Hodel
decision in 1987, several federal district courts have adopted this state law
“continued use” standard in the determination of R.S. 2477 claims. See Barker
v. Board of County Comm’rs of the County of La Plata, Colo., 49 F. Supp. 2d
grounds, 22 F. 3d 1513 (10 Cir. 1994); Adams v. United States, 687 F. Supp.
of Army, 10 F. 3d 649, 655 (9 Cir. 1993) (citing Hodel), withdrawn andth
superseded on rehearing, 96 F. 3d 1222 (9 Cir. 1996).
The cases adopting the “continued use” standard, however, are distinguishable
from the present matter. The more recent cases to adopt this standard reached
that interpretation simply by citing back to Hodel, rather than through
independent analysis of the competing interpretations of the word “construction.”
The Hodel case itself also seems to have reached its decision by citing to
previous cases, rather than by analyzing the statutory meaning of the term
“construction.” In ruling that state law would govern the establishment of R.S.
of Interior, 634 F. Supp. 1265, 1272 (D. Colo. 1986), and United States v.
9,947.71 Acres of Land, 220 F. Supp. 328, 335 (D. Nev. 1963). The Wilkenson
case looked to state law for the establishment of R.S. 2477 rights-of-way only
because the parties to that case agreed to do so. See Wilkenson, 634 F. Supp. At
1272. And the 9,947.71 Acres case appears to have been miscited .... The issue
of whether “physical work” or “continued use” was required to perfect an R.S.
Nevertheless, the language used by the court clearly indicates its view that
physical work was required to perfect an R.S. 2477 right-of-way. In referring to
the road at issue in that case, the court mentioned that the road had been “built”
and “laid out” through a meandering mountain pass and that “acts of the actual190
construction” had been necessary to create the road ....
... Further, Plaintiffs are correct that the Tenth Circuit’s decision in Hodel did not
resolve the issue of what interpretation should be given to the word
“construction” in R.S. 2477. The Tenth Circuit’s decision in Hodel addressed
only the scope of R.S. 2477 rights-of-way already found to have been established
– it did not address the issue in this case, how R.S. 2477 rights-of-way are191
established in the first place ....
The appeal of this case was dismissed by the 10th Circuit for lack of jurisdiction
since the lower court had not yet ruled on requests for injunctive relief and
damages,192 so additional clarification on the issue of the role of state law in
establishing R.S. 2477 rights of way is not yet available.
190 Id. at 1141-1142.
192 69 Fed. Appx 927, 2003 U.S. App. LEXIS 13208 (10th Cir. June 27, 2003).
Scope of Rights of Way. A complete analysis of the scope of R.S. 2477
rights of way is beyond the scope of this report, but some background on this issue
may be helpful. The 1866 Act is silent as to the extent and features of a right of way,
and the regulations of the Department did not elaborate on the scope of R.S. 2477
grants. Although there have been few federal cases to date, in the Hodel case
involving the Burr Trail, the 10th Circuit held that the scope of a valid R.S. 2477
right of way generally is to be determined by the laws of the state in which the right
of way is located, as they existed in 1976.193 Under this rule, analysis of the scope
of a particular right of way will vary depending both on the facts of each case and the
laws of the state in which the right of way is located. The Hodel case addressed only
the part of the road in question that was adjacent to Wilderness Study Areas (WSAs).
The court discussed the relationship of the permissible scope of the right of way
under Utah law to the management duties of BLM in that context.
Applying Utah law, the district court in Hodel found that a valid R.S. 2477 right
of way includes the potential to expand the right of way to a width that is "reasonable194
and necessary" for the type of use to which the road had been put. The 10th Circuit
affirmed on this point, adding that reasonable and necessary must be read in light of
traditional uses to which the right of way was put. Furthermore, the court felt that
the basic principles of law governing easements would control abuses, in that owners
of the dominant and servient estates must exercise their rights so as not unreasonably
to interfere with each other.195
Although the appeals court stated that state law controlled and that state law
held an easement was limited to the original use for which it was acquired, the court
next stated that the county's right of way was not limited to the use to which it was
first put, because R.S. 2477 was an open-ended and self-executing grant under which
new uses automatically vested. The court apparently meant that all the particular
highway uses that developed over the years before repeal in 1976 would assist in
determining the reasonable and necessary scope of valid expansion.196 The court
noted that the district court had found expanding the road to promote economic
development was within the historic uses of the road as a "vital link between the197
country's major centers of activity". The district court had directed the county to
apply to BLM for a right of way permit for a part of the road segment that needed to
be relocated from its historic location. The appeals court agreed, but added that the
BLM could not deny the permit or impose all the conditions it usually could impose
on rights of way granted under Title V of FLPMA, but that BLM could specify where
193 Sierra Club v. Hodel, 848 F.2d 1068, 1080-1081 (10th Cir. 1988), overruled on other
grounds, Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.
194 Sierra Club v. Hodel, 675 F. Supp. 594, 607 (C.D. Utah 1987).
195 Sierra Club v. Hodel, 848 F.2d at 1083, citing Utah cases.
196 Id. 1083-1084.
197 675 F. Supp. at 606.
the road should be relocated in order to have the least degrading impact on the
The court had perceived a conflict between the saving provisions of FLPMA
that preserved the valid R.S. 2477 right of way, and the duty imposed on BLM in
§603(c) to manage WSAs to avoid impairing their wilderness values and to avoid
unnecessary and undue degradation. Congress had specified in §603 that certain
other uses were to be allowed to continue in WSAs, but did not speak to valid
existing roadways. BLM had analogized valid existing highways to other
grandfathered uses and afforded them the same protections, an interpretation the
court found reasonable.
It is interesting to note that the courts in the Hodel cases derived the authority
of the federal government to have any control over the scope and exercise of the R.S.
2477 right from the duty of BLM to prevent unnecessary and undue degradation of
the WSAs under their management. Under the general management section of
FLPMA, 43 U.S.C. 1732(b), BLM has a similar duty to prevent undue degradation
of all the lands under its management. In other words, the federal government is no
longer in the pre-FLPMA position of having no interest in or responsibilities for the
underlying lands impacted by R.S. 2477 highways.
Another Utah case further elaborated on the relative interests of the United
States and those with the R.S. 2477 easement interest. In United States v. Garfield
County,199 Garfield County had bulldozed part of the Burr Trail that traverses Capitol
Reef National Park, for which actions the United States sought damages in trespass.
The court, relying on the Hodel cases, determined that the scope of the R.S. 2477
right of way is that which is reasonable and necessary to ensure safe travel for the
uses made of the right of way at the time of repeal of R.S. 2477, including improving
the road to two lanes so travelers could pass each other.200 The court rejected the
County’s assertion that the width of the right of way included all “disturbed area,”
finding that standard to be “the most singularly unhelpful, uncertain and
ungovernable approach to answering the question of scope.”201 The issue of the
extent to which the County could “improve” the road led to an exploration of the
respective authorities of the two parties. The County asserted that it could improve
the road without permission from the National Park Service, but the National Park
Service pointed to its statutory authorities to protect the federal lands underlying and
surrounding the right of way and to “conserve the scenery and the natural and historic
objects and wildlife therein.”202 The court responded that: “[a]t the intersection of
power, right, and duty, then, the law comprehends that one entity may not act upon
its rights without regard for the other. Each must acknowledge the need for
198 848 F.2d at 1088.
199 122 F. Supp.2d 1201 (D.C.D. Utah 2000)
200 Id. at 1217.
201 Id. at 1230.
202 Id. at 1240.
reasonable accommodation of the other’s duties, powers and purposes.”203 “Hodel
instructs that ‘the initial determination of whether the activity falls within an
established right of way is to be made by’ the federal land management agency
having authority over the lands in question.”204 The court held that Garfield County
could conduct maintenance work without prior authorization from the National Park
Service, but could not perform work constituting “construction” within the meaning
of the NPS regulations without first obtaining a permit, approval or agreement from
the National Park Service, which could regulate that construction work to the extent
provided by regulation and statute.205
Undoubtedly there will be other disputes as to the scope of R.S. 2477 rights of
way and the respective authorities to regulate their improvement and use, and it
remains for future agency and judicial exposition to flesh out these issues further.
Is R.S. 2477 Retrospective or Prospective? The court in United States
v. Dunn held that the 1866 Act was meant only to sanction trespasses that had
occurred on the public domain before its enactment. The court said that the Act was
"not intended to grant rights, but instead to give legitimacy to an existing status206
otherwise indefinable." The court reached this result by relying on two previous
cases, both of which addressed those aspects of the 1866 Act that cured past
trespasses, because those were the facts before the court. A better reading of both
cases is that the 1866 Act served to legitimize past trespasses and to establish
priorities of occupancy rights that related back to the establishment of the uses rather
than only to the 1866 date of enactment.207 Neither case held that the 1866 Act only
203 Id. at 1243.
204 Id. at 1243, quoting 848 F.2d at 1085.
205 Id. at 1265. As to the authority of federal agencies to regulate R.S. 2477 rights of way,
see United States v. Jenks, 22 F.3d 1513 (10th Cir. 1994), and 129 F.3d 1348 (10th Cir. 1997),th
and United States v. Vogler, 859 F.2d 638 (9 Cir. 1988), cert. denied, 488 U.S. 1006th
(1989); accord, Clouser v. Espy, 42 F.3d 1522, 1538 (9 Cir. 1994); Adams v. United States,th
206 478 F. 2d 443, 445 n.2 (9th Cir. 1973)
207 Jennison v. Kirk, 98 U.S. 453, 459 (1878), quoted approvingly the statement of the author
of the act that "[i]t merely recognized the obligation of the government to respect private
rights which had grown up under its tacit consent and approval. It proposed no new system,
but sanctioned, regulated, and confirmed a system already established, to which the people
were attached." However, the Court in that case addressed a factual situation where two
miners disagreed as to whose rights had priority with respect to a mining claim and a water
ditch -- two uses in effect when the 1866 Act was passed. The Court's comments were
therefore dicta to the extent they should be construed as indicating the Act had no
prospective effects. The better reading, however, seems to be that the author meant that the
See discussion above. Central Pacific Railway Co. v. Alameda County, 284 U.S. 463
(1931), presented the issue of whether a R.S. 2477 road should be considered established
in 1866 when it was validated by the Act, or whether it should be considered as having been
established in 1859 when it was layed out and approved by the county. (If the former, it
predated the rights of the railroad.) The Court held that the 1866 Act sanctioned existing
addressed past trespasses, and the best reading of these two cases and of the majority
of judicial interpretation indicates that the act also was prospective in its application.
The 9th Circuit noted the issue as an open question in a 1982 opinion in
Humboldt County v. United States.208 However, two years later, the same Circuit
noted that the parties to new litigation agreed that R.S. 2477 operated prospectively
to grant rights of way for highways constructed after its enactment. The court then
stated: "Dunn is questionable authority because it is contrary to the cases cited in
Humboldt County, 684 F.2d at 1282 n. 6, and appears to misread Central Pacific
Railway Co. v. Alameda County, 284 U.S. 463, 52 S. Ct. 225, 76 L. Ed. 402
Therefore, the better interpretation would seem to be that while the 1866 Act
confirmed preexisting rights of way, it also applied prospectively.
Does R.S. 2477 Apply Only to Roads for Mining or Homesteading
Purposes? The Ninth Circuit also has held that an alternative ground for finding
that Humboldt County did not acquire a right of way under R.S. 2477, is that a right
of way could not be acquired under that Act for a road for purposes other than mining
or homesteading, which purposes did not include the desired purpose of reaching a
recreation area. The court found that although the language of the grant is without
limitation as to purpose, the statute of which it was a part addressed solely mining
and homesteading claims. The court noted that the holding in Wilderness Society v.
Morton210 was consistent with this interpretation in that the road in that case would
facilitate oil drilling, which was completely consonant with Congress' intent in 1866
to facilitate private mineral development.211
Although the argument can be made that section 8 is limited to the context of
the act of which it is a part, the language is not so limited on its face, and the
provision seems consistently to have been interpreted as being of general import.
The meaning of "highway" as a significant road set forth earlier in this report also
rights of way rather than creating new ones as of 1866. The Court reviewed the Jennison
case and stated: "The section of the Act of 1866 granting rights of way for the construction
of highways, no less than that which grants the right of way for ditches and canals, was so
far as then existing roads are concerned, a voluntary recognition and confirmation of
preexisting rights, brought into being with the acquiescence and encouragement of the
general government." (Id. at 473. Emphasis added.) Quite arguably, the Court in Central
Pacific corrected the possible reading of the Jennison case that it denied possible
prospective rights, and made clear that both cases spoke only to then existing rights, finding
that they were ratified as of the time the uses were established, rather than being "new"
rights as of 1866.
208 684 F.2d 1276, 1282 n. 6 (9th Cir. 1982).
209 United States v. Gates of the Mountains Lakeshore Homes, 732 F.2d 1411, 1413 n.3 (9th
210 479 F.2d 842 (D.C. Cir. 1973)(en banc), cert. denied, 411 U.S. 917 (1973).
211 Humboldt Co. v. United States, 684 F.2d 1276, 1282 (9th Cir. 1982).
refutes the narrow interpretation. Furthermore, when the provision was codified, it
was not placed with the remainder of the sections pertaining to mineral claims, but
rather was codified as part of the general rights of way provisions as 43 U.S.C. §932.
Although unenacted titles of the United States Code are only evidence of the law and
cannot change the law,212 this Code placement is further evidence that the provision
should be interpreted as of general import.
The Department of the Interior also has interpreted the provision as applicable
to other than mining access. A 1959 Solicitor's Opinion on access to mining claims
states that Congress understood when it enacted the mining laws that miners would
have to use the public lands for roads, and that roads were necessary and
complementary to mining activities. The opinion does not mention section 8 of the
1866 Mining Act (R.S. 2477) as relevant to the discussion of mining roads, a fact that
argues for the interpretation that the highway grant in section 8 was speaking of roads
other than mere mining access roads.213 It also appears that the vast majority of cases
have implicitly found the highway right of way is not limited to the mining and
homesteading context.214 United States v. 9,947.71 Acres of Land215 held that private
entities were entitled to compensation from the United States for the taking of their
mine access right of way. Although the court had discussed R.S. 2477 as one
authority for the mine road, the court also concluded that the right of way was not a
public highway, and the case does not stand for any clear characterization of R.S.
What Are Unreserved Lands? The 1866 grant was for rights of way across
public lands that were not then reserved. Public lands are those lands in the public
domain -- basically the western lands the United States obtained from another
sovereign rather than from a state or individual -- that were open to the operation of
the various public land laws enacted by Congress, such as the homesteading acts.
Reserved lands are those public lands that are withdrawn and dedicated to a particular
federal purpose or purposes, such as military reservations or national parks.
The position of the Department in the 1988 policy statement was that public
lands that are not available for R.S. 2477 rights of way are those that are 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, or 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 or claim.216 Usually, it is clear whether a full-fledged
reservation has occurred. The situation may not be as clear, however, when
classifications and withdrawals are involved.
212 1 U.S.C. §204; Preston v. Heckler, 734 F.2d 1359, 1367 (9th Cir. 1984); Stephan v.
United States, 319 U.S. 423, 426 (1943)(per curiam).
213 See 66 I.D. 361, 362, 364 (1959).
214 See, e.g., Sierra Club v. Hodel, 675 F. Supp. 594, 601 (D. Utah 1987), which indicates
that the road in that case originated as a livestock driveway and a wagon road.
215 220 F. Supp. 328 (D. Nev. 1963).
216 1988 Policy Statement at 1.
For example, the withdrawals and classifications associated with the creation
of grazing districts under the 1934 Taylor Grazing Act217 may reserve lands
sufficiently to preclude establishment of an R.S. 2477 right of way. The Taylor
Grazing Act at 43 U.S.C. §315f provides that affected lands "shall not be subject to
disposition, settlement, or occupation until after the same have been classified and
opened to entry." Yet 43 U.S.C. §315e states that "nothing contained in this chapter
shall restrict the acquisition, granting or use of ... rights -of-way within grazing
districts under existing law ...." The 9th Circuit has held that the two sections should
be read together, such that withdrawals and creation of a grazing district precluded
establishment of a road across grazing district lands, unless the entity seeking to
acquire a right of way sought the reopening of such lands under 43 U.S.C. §315f in
order to establish the road.218 If this reasoning is repeated in other cases, it obviously
would have a great impact on the remaining R.S. 2477 validity determinations since
the Taylor Grazing Act withdrawals were extensive.
Estoppel. An issue that underlies much of the controversy surrounding R.S.
2477, especially with reference to construction issues, is that of federal
"acquiescence" in whatever interpretations the states devised. The argument can be
made that because the agency administering the Act allegedly did not assert any
federal requirements or dispute state claims for a period of over a hundred years, and
because Congress also acquiesced in state articulation of all aspects of these grants,
the federal government may not now assert statutory requirements that contradict
state claims or interpretations. Therefore, the argument continues, the valid existing
rights that were preserved by FLPMA are those and only those that are recognized
as valid under state law.
This issue of estoppel by acquiescence was discussed in United States v.
California, a case involving disputed ownership and jurisdiction over the three-mile
belt of submerged lands off the coast of California. The Court ruled for the United
States (a position Congress later changed by statute), despite a long history of
acquiescence by federal officials in the assertion of jurisdiction by the State, even to
the point of making federal purchases of rights in the belt. The Court said:
As a matter of fact, the record plainly demonstrates that until the California oil
issue began to be pressed in the thirties, neither the states nor the Government
had reason to focus attention on the question of which of them owned or had
paramount rights in or power over the three-mile belt. And even assuming that
Government agencies have been negligent in failing to recognize or assert the
claims of the Government at an earlier date, the great interests of the government
in this ocean area are not to be forfeited as a result. The Government, which
holds its interests here as elsewhere in trust for all the people, is not to be
deprived of those interests by the ordinary court rules designed particularly for
private disputes over individually owned pieces of property: and officers who
have no authority at all to dispose of Government property cannot by their
217 Act of June 28, 1934, ch. 865, 48 Stat. 1269, codified at 43 U.S.C. §§315 et seq.
218 Humboldt County v. United States, 684 F.2d 1276, 1281 (9th Cir. 1982). See also the
Burr Trail/Hodel cases, which found that, in that case, a road had already been established
by the time of the withdrawals in question. 675 F. Supp. at 604; 848 F. 2d at 1079 n.10.
conduct cause the Government to lose its valuable rights by their acquiescence,219
laches, or failure to act.
The analogy with the current situation appears clear. The federal government
had no reason to focus on validity of R.S. 2477 rights of way until after the repeal of
the measure, and possibly not until the issuance of the 1988 Policy Statement, which
perhaps encouraged claims that had previously not been considered to be valid.
Quite arguably, the actions of the federal agents were not as compromising in the
R.S. 2477 context as they were in the California context because the regulation of the
Department did incorporate the elements of the relevant statute, and because of the
historical context surrounding rights of way before FLPMA.
In Utah Power & Light Co. v. United States, involving another right of way
statute and a combination of acquiescence and overt actions on the part of federal
agents, the Supreme Court also held:
This ground also must fail. As a general rule laches or neglect of duty on the part
of officers of the Government is no defense to a suit by it to enforce a public
right or protect a public interest .... A suit by the United States to enforce and
maintain its policy respecting lands which it holds in trust for all the people
stands upon a different plane in this and some other respects from the ordinary220
private suit to regain the title to real property or to remove a cloud from it.
An "estoppel" argument also was raised in City and County of Denver v.
Bergland, involving another right of way statute. The court quoted from U.S. v.
California, supra., with approval, and stated that estoppel, if applicable at all, can lie
only against an agency to which Congress has delegated the authority to dispose of
lands held in trust for the public.221 The court did not decide whether some version
of estoppel could apply to the agencies regarding the right of way involved in that
case, because it concluded that plaintiff had failed to make a traditional case of
estoppel against the United States for reasons that may well also pertain in the current
R.S. 2477 context.222 Even if the elements of estoppel are present, when title to
public lands is involved, policy considerations demand that estoppel not be applied
without compelling reasons.223
An argument can be made that estoppel is not appropriate in the R.S. 2477
situation, because the elements required by the 1866 Act are evident on the face of
219 332 U.S. at 39-40. See also Utah Power and Light Co. v. United States, 243 U.S. 389,
220 243 U.S. 389, 409 (1917).
221 695 F.2d 465, 482.
222 Id. See also Oregon v. BLM, 676 F. Supp. 1047, 1059 (D.Or. 1987); United States v.
Wharton, 514 F.2d 406 (9th Cir. 1975); and U.S. v. 31.43 Acres of Land, more or less, 547
F.2d 479, 482 (9th Cir. 1976.).
223 See, e.g., Oregon v. Bureau of Land Management, 676 F. Supp. 1047, 1059 (D. Or.
1987), a case in which the General Land Office had made certain determinations involving
lands, which the BLM invalidated 40 years later. The court cited with approval United
States v. Ruby, 588 F. 2d 697, 704 (9th Cir. 1978).
the Act and have consistently been required by the Department since its earliest
Clearly, there is a legitimate and significant role for state law to play in
implementing the statute, but it can hardly be assumed that Congress agreed with
diverse state interpretations of which it was not aware and regarding which it had no
reason to inquire. Furthermore, Congress has acted to address rights of way in
legislation since 1866 in enactments that are consistent with an intent in the 1866 Act
to grant rights of way for the construction of significant roads, and therefore it could
be argued that Congress did not necessarily acquiesce in apparently contrary state
A reconsideration of the 1988 Policy and the criteria set out in it, the argument
might continue, that resulted in a new articulation closer to the requirements of the
Act would not actually be disruptive of the current status quo because most of the
qualifying roads clearly qualified by 1976. Furthermore, an examination of some of
the leading state cases indicates that an interpretation that required qualifying roads
to be public highways under state law and also to meet the elements of the federal
grant would not be at odds with most of the actual rules and facts of those cases.
Statute of Limitations. Except for certain suits by states, the Quiet Title Act
bars suits that are brought more than 12 years after the plaintiff knew or should have
known that the United States asserted title in a particular property contrary to their
own.224 The previous disclaimer regulations had a blanket statute of limitations of
12 years. The amended regulations parallel the QTA by providing a new exception
for state claims, but also put in place a new definition of “state” that, in contrast to
the interpretation of that term under the QTA and to the absence of any exception to
the 12-year statute of limitations in the previous disclaimer regulations, includes
counties and other political subdivisions of states, and other governmental entities,
thereby broadening those not time-barred from seeking a disclaimer. Court cases
have analyzed whether the statute of limitations in the QTA context may have run
with respect to R.S. 2477 claims, and may shed light on statute of limitations issues
in the disclaimer context.
After Congress repealed R.S. 2477 in its entirety in 1976, no new R.S. 2477
rights of way could be established, and several administrative actions taken after the
repeal of the grant in 1976 may have begun the 12-year period. After repeal, BLM
notified the states that R.S. 2477 was no longer effective and that all new claims225
would be under Title V of FLPMA. In 1980, BLM proposed regulations for Title
V rights of way, and included a request for all persons, state or local governments
224 Under 28 U.S.C. §2409a(k), the notice for the purpose of the accrual of an action brought
by a state must be "(1) by public communications with respect to the claimed lands which
are sufficiently specific as to be reasonably calculated to put the claimant on notice of the
Federal claim to the lands, or (2) by the use, occupancy, or improvement of the claimed
lands which, in the circumstances, is open and notorious."
225 Organic Act Directive No. 76-15 at 5, December 14, 1976.
that had "constructed public highways" under the authority of R.S. 2477 to file maps
showing the locations of the highways. However, doing so was optional.226
As part of its implementation of section 603 of FLPMA, BLM also developed
proposed criteria for determining which lands were "roadless". These criteria were
finalized after public review and numerous public meetings. The Wilderness Policy
and Review Procedures were issued in draft form on February 27, 1978. More than
most of which focused on the proposed definition of "road" that would be used in the
inventory.227 A wilderness inventory handbook was issued on September 27, 1978.228
BLM then completed two levels of inventories that were completed by December,
By the end of 1980, lists of areas determined to be roadless that were classified
as "Wilderness Study Areas" (to be studied further for suitability for inclusion in the
National Wilderness Preservation System) were published in the Federal Register and
the BLM directors in each state issued press releases on the classifications and
designated areas. The names and addresses of each BLM State Director were given
in the Notices, which also stated that inventory maps and detailed information were
available to the public.229
Arguably, this sequence of actions, especially the opportunity for public
comment on the proposed wilderness inventory procedures and in particular the
definition of "road" that generated such response, the public notice of the final
Wilderness Handbook, the BLM inventories of roadless areas, and the subsequent
published determinations of which areas were deemed to be without roads may have
constituted notice of a position of the United States adverse to possible claimed R.S.
If these actions of BLM are found to have put possible claimants on notice that
they should assert R.S. 2477 claims, the statute of limitations may have run such that
some claimants may not be able to contest an adverse determination now under the
QTA. However, courts may require additional acts in order to find that a plaintiff
“knew or should have known” that the United States claimed title in conflict with a
non-federal right of way.230
The argument can also be made that if R.S. 2477 “highways” are interpreted as
including minor ways that were not even roads for purposes of section 603 of
226 See n. 127, supra.
227 See the Preface to the Wilderness Inventory Handbook (1978).
228 43 Fed. Reg. 43772 (September 27, 1978).
229 Many of the state-by-state final inventories were published in the Federal Register on
November 14, 1980. See, e.g., lists beginning on 45 Fed. Reg. 75577 (November 14, 1980).
230 See discussions of notice in Spirit Lake Tribe v. North Dakota 262 F.3d 732 (8th Cir.
2001), reh. denied, reh. en banc denied US App LEXIS 24546, and cert. denied US LEXIS
County v. United States, 626 F.2d 718 (9 Cir. 1980), cert. denied 449 U.S. 1112.
FLPMA, then the classification of areas as roadless still did not suffice as notice of
a position of the United States hostile to the interest of possible R.S. 2477 claimants,
such that the clock on the statute of limitations began to run. Absent Congressional
action, this, like many other R.S. 2477 issues appears likely to be settled by the
Current Congressional Actions
H.R. 1639 in the 108th Congress would establish a window of time to present
R.S. 2477 claims, beyond which time such claims would be deemed to have been231
abandoned, and would establish uniform definitions and a procedure for validating
The bill would define “construction” and “highway” as:
[A]n intentional physical act or series of intentional physical acts that were
intended to prepare, and that accomplished preparation of a highway by a
durable, observable, physical modification of the land along the entire claimed
route to facilitate the safe and efficient passage of four-wheeled highway
A thoroughfare along a specific identified route that, prior to the latest available
date, was used by the public, without discrimination against any individual or
group, for the passage of four-wheeled highway vehicles carrying people or
goods from one inhabited place to another inhabited place.
The House approved an amendment to FY2004 Interior and Related Agencies
Appropriations (H.R. 2691) that would have prohibited implementation of the
disclaimer regulation amendments in national monuments, wilderness and wilderness
study areas, National Parks, and National Wildlife Refuges. The Senate bill did not
contain a similar provision and it was eliminated in conference.
231 See section 314 of FLPMA, 43 U.S.C. 1744, in which Congress imposed a three year
time limit on recording mining claims, beyond which time the claims would be deemed
conclusively to constitute an abandonment of the claims. This approach was upheld in
United States v. Locke, 471 U.S. 84 (1985).
Comparison of Various Definitions Relating to R.S. 2477
“Construction must have occurred while the“A public highway is a definitive route or
olicylands were public lands, not reserved for publicway that is freely open for all to use. It
uses. Construction is a physical act of readyingneed not necessarily be open to vehicular
the highway for use by the public according totraffic for a pedestrian or pack animal trail
the available or intended mode of transportationmay qualify. A toll road or trail is still a
-foot, horse, vehicle, etc. Removing highpublic highway if the only limitation is the
vegetation, moving large rocks out of the way,payment of the toll by all users. Multiple
or filling low spots, etc., may be sufficient asways through a general area may not
construction for a particular case. Surveyqualify as a definite route, however,
planning, or pronouncement by publicevidence may show that one or another of
authorities may initiate construction but doesthe ways may qualify. The inclusion of a
not, by itself, constitute construction. highway in a State, county, or municipal
Construction must have been initiated prior toroad system constitutes being a public
the repeal of R.S. 2477 and actual constructionhighway. Expenditure of construction or
must have followed within a reasonable time. maintenance money by an appropriate
Road maintenance over several years may equalpublic body is evidence of the highway
actual construction. The passage of vehicles bybeing a public highway. Absent evidence
users over time may equal actual construction.”to the contrary, a statement by an
appropriate public body that the highway
was and still is considered a public
highway will be accepted.”
“[A]n intentional physical act or series of“[A] thoroughfare that is currently and was
egulationsintentional physical acts that were intended to ,prior to the latest available date used by
and that accomplished, preparation of a durable,the public, without discrimination against
observable, physical modification of land forany individual or group, for the passage of
use by highway traffic. Where State law, invehicles carrying people or goods from
effect on the latest available date, further limitsplace to place. Where State law, in effect
the definition of construction, these limits alsoon the latest available date, further limits
apply.”the definition of highway, these limits also
An intentional physical act or series ofA thoroughfare that was prior to the latest
egislationintentional physical acts that were intended to,available date used by the public, without
and that accomplished, preparation of a highwaydiscrimination against any individual or
by a durable, observable, physical modificationgroup, for the passage of vehicles carrying
of land for use by highway traffic.people or goods from place to place.
Some form of mechanical construction must
. BLMhave occurred to construct or improve the
highway. A highway right-of-way cannot be
established by haphazard, unintentional, or
incomplete actions. For example, the mere
passage of vehicles across the land, in the
absence of any other evidence, is not sufficient
to meet the construction criteria of R.S. 2477
and to establish that a highway right-of-way was
Evidence of actual construction may include
such things as road construction or maintenance
records, aerial photography depicting
characteristics of physical construction, physical
evidence of construction, testimony or affidavits
affirming that construction occurred, official
United States Government maps with legends
showing types of road, as well as other kinds of232
“[A]n intentional physical act or series of“[A] thoroughfare along a specific
intentional physical acts that were intended toidentified route that, prior to the latest
prepare, and that accomplished preparation of, aavailable date, was used by the public,
highway by a durable, observable, physicalwithout discrimination against any
modification of the land along the entire claimedindividual or group, for the passage of
route to facilitate the safe and efficient passagefour-wheeled highway vehicles carrying
of four-wheeled highway vehicles.”people or goods from one inhabited place
to another inhabited place.”
No published definitions; definitions will
evidently vary from agreement to agreement.
232 Southern Utah Wilderness Alliance v. Bureau of Land Management, 147 F. Supp. 2d