Federal Lands, R.S. 2477, and "Disclaimers of Interest"

CRS Report for Congress
Federal Lands, R.S. 2477, and
“Disclaimers of Interest”
Pamela Baldwin
Legislative Attorney
American Law Division
An 1866 statute known as R.S. 2477 granted rights of way for the construction of
highways over unreserved public lands. On January 6, 2003, the Department of the
Interior published broad new “disclaimer of interest” regulations under § 315 of the
Federal Land Policy and Management Act of 1976 and stated that disclaimers would be
used to acknowledge R.S. 2477 rights of way. Congress has directed that no rules
“pertaining to” recognition or validity of an R.S. 2477 rights of way can be effective
unless authorized by Congress, and the use of disclaimers in the R.S. 2477 context may
be controversial. More recently, DOI has issued new guidance regarding recognition of
R.S. 2477 rights of way that again mentions the use of disclaimers for that purpose. This
report discusses R.S. 2477 rights of way, the disclaimer regulations and DOI guidance,
the congressional directive, and legislation. It will be updated as warranted.
Background. An 1866 statute that became Revised Statutes § 2477 stated that “...
the right of way for the construction of highways over public lands, not reserved for
public uses, is hereby granted.”1 The Federal Land Policy and Management Act of 19762
(FLPMA) repealed this act but also protected valid R.S. 2477 rights of way in existence
at the time of repeal. Certain rights of way asserted under R.S. 2477 may be controversial
because they run either through undeveloped areas that might otherwise qualify for
wilderness designation or across lands that are now private or included in federal reserves
(such as parks or national forests).

1 Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified in 1873 as § 2477 of the Revised
Statutes, recodified in 1938 as 43 U.S.C. § 932. For a more complete discussion of R.S. 2477
issues, see CRS Report RL32142, Highway Rights of Way on Public Lands: R.S. 2477 and
Disclaimers of Interest, by Pamela Baldwin.
2 P.L. 94-579, 90 Stat. 2770, 43 U.S.C. § 1745.
Congressional Research Service ˜ The Library of Congress

On January 6, 2003, the Department of the Interior (DOI) published new final
regulations on “disclaimers of interest”3 issued under § 315 of FLPMA. These new
regulations amend existing disclaimer regulations at 43 C.F.R. Part 1860, Subpart 1864,
to allow states, state political subdivisions, and others to apply for disclaimers, dropping
requirements from the previous regulations that a claimant must be the owner of record,
and creating exceptions to the 12 year statute of limitations. A disclaimer is a recordable
document in which the United States declares that it has no property interest in land. 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. The explanatory
materials published with the new rule assert that the rule is completely separate from
determinations of the validity of “R.S. 2477” rights of way claims, yet also stated that
disclaimers would be used to acknowledge R.S. 2477 rights of way. Initially, the DOI
executed a Memorandum of Understanding (MOU) with the state of Utah (and
negotiations were begun with other states) to acknowledge R.S. 2477 rights of way by
issuing disclaimers. Several applications for disclaimers were published but later
withdrawn.4 The relationship between the disclaimer regulations and R.S. 2477
determinations is controversial because Congress in § 108 of P.L. 104-208 stated that no
rules “pertaining to” recognition or validity of R.S. 2477 rights of way could be effective
unless authorized by Congress.
On March 22, 2006, DOI issued new R.S. 2477 guidance that rests on the 10th Circuit
case Southern Utah Wilderness Alliance v. Bureau of Land Management.5 This guidance
purports to be a policy document and not to impose binding obligations on the agency or
private parties, and therefore DOI asserts that it is not inconsistent with P.L 104-208. The
policy repeals previous R.S. 2477 policies and directs that the approach taken in the
SUWA case be followed even beyond the 10th Circuit jurisdiction. This approach allows
a broad role for state law in determining compliance with the elements of a valid R.S.
2477 right of way.6 DOI directed the termination of the MOU with Utah as “inoperative
in light of the SUWA decision.” It is not clear why this would be so, except that the court
in the SUWA case distinguished between instances when federal land agencies might need
to make R.S. 2477 determinations to carry out executive functions related to the lands —
such as planning — from instances involving determinations of legal title to real property.
“The latter is a judicial, not an executive, function. It is one thing for an agency to make
determinations regarding conditions precedent to the passage of title, and quite another
for the agency to assert a continuing authority to resolve by informal adjudication disputes
between itself and private parties who claim that they acquired legal title to real property
interest at some point in the past.” The court noted instances in which the Bureau of Land

3 68 Fed. Reg. 494.
4 See, e.g., 69 Fed. Reg. 6000 (February 9, 2004), later withdrawn when it became apparent the
road in question was federally constructed.
5 425 F. 3d 735 (10th Circuit 2005).
6 Issues remain, however, in that it can be argued that the court looked to the common law
meaning of the terms used in R.S. 2477 (including, e.g. that “highway” could include a river),
rather than on the historical context and terms of congressional enactments involving roads;
merged “acceptance” by a state for purposes of state maintenance and tort liability with
acceptance by a state of the terms of the federal grant; and relied on state cases that did not
involve the federal government or its interests.

Management and other agencies resolved title questions in court, rather than deciding
them .7
DOI acknowledged in its 2006 guidance that SUWA found that BLM lacks the
authority to make binding determinations on the validity of R.S. 2477 rights of way, yet
the guidance also states that disclaimers “remain available to settle questions regarding
the United States’ interest in rights of way. Such disclaimers have the same effect as a
quitclaim deed, estopping the United States from asserting a claim to the interest that is
disclaimed.” Arguably, use of administrative disclaimers in the context of disputed R.S.
2477 highways could constitute a binding administrative determination relating to title
and hence may be inappropriate or invalid.8
What Are R.S. 2477 Rights of Way and Why Are They Controversial?
R.S. 2477 rights of way are those obtained under an 1866 statute, reenacted as § 2477 of
the Revised Statutes, and later repealed by § 706 of FLPMA. The 1866 statutory language
was succinct, stating simply that “the right of way for the construction of highways over
public lands, not reserved for public uses, is hereby granted.” Section 701 of FLPMA
provided that valid rights of way in existence at the time of repeal in 1976 were to be
recognized. In most states it was clear which highway beds were valid because there had
been an acceptance process under state law (e.g. county maintenance or formal
recognition). In a few states, however, there was no clear system of acceptance or
recording and the existence and recognition of the highways as a factual matter was not
always clear. In these circumstances determining whether a way qualifies as a R.S. 2477
“highway” can be difficult because the meaning of “construction,” “highway,” and “not
reserved” in the federal granting language and the appropriate scope of the role of state
law have been controversial. The issues are significant 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 federal
reserves such as parks or national forests created after the establishment of the rights of
way. On the other hand, validating R.S. 2477 rights of way may increase access to and
across the federal lands and facilitate economic development.
FLPMA § 315 Regulations. Section 315(a) of FLPMA authorizes the Secretary
to issue disclaimers when a property interest of the United States has terminated or is
invalid, 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

7 SUWA, supra, 2005 U.S. App. LEXIS 19381 at * 40.
8 Yet the court also, in commenting on the issue of burden of proof, stated at *90 in note 20 that
“[t]he burden may be different in cases where the R.S. 2477 claim has previously been
adjudicated, or where there is a federal disclaimer of interest, memorandum of understanding,
or other administrative recognition. We have no occasion in this case to opine on the legal effect
of such administrative determinations.” Given that a disclaimer has the same effect as a
quitclaim deed by the United States, it is difficult to see how the court could conclude on the one
hand that an executive agency may not properly decide title issues but then also intimate that
agency disclaimers renouncing title could nonetheless affect title adjudications. See discussion
of administrative disclaimers, infra.

such lands and where he determines (1) a record interest of the United States in lands9
has terminated by operation of law or is otherwise invalid; or ....
Section 315(c) states that a recordable federal disclaimer of interest has an effect
equivalent to a quitclaim deed. The original disclaimer regulations add that although a10
disclaimer does not actually convey title, presumably because the disclaimer indicates
there is no title interest of the United States to be conveyed, it may stop the United States
from later asserting a claim to the lands. These regulations also state that the purpose of
the procedure is to eliminate the necessity for court action in the circumstances set out in
§ 315. The previous regulations limited those who could apply to use the procedure to
“any present owner of record,”11 a limitation that does not appear in the statute. The new
regulations allow any entity to file an application for a disclaimer, and also provide that
although most applicants must file within 12 years of the time they knew or should have
known of a claim of the United States, this time limitation does not apply to states. The
explanatory materials indicate that this is to make the § 315 regulations consistent with
the Quiet Title Act (QTA), which has a strict 12-year limitation, except for states — and
“state” has been narrowly construed, such that counties and other subdivisions of a state12
cannot avail themselves of the exception. However, the new disclaimer regulations also
add a definition of “state” as including state political subdivisions and “any of its
creations,” and “other official local governmental entities.” This language is not
elaborated on, but appears to include any independent commission or body a state (or13
possibly a county) might choose to create for any purpose, which implies that these
entities may now seek disclaimers even though they could not undertake a suit under the
Scope of FLPMA §315 Disclaimers. What were the intended uses and scope
of § 315? There is little legislative history of § 315, except that it was to be used when
the United States had no interest in certain lands, and it was to eliminate the necessity for
court action or private relief legislation in that circumstance.14 Absent more detailed
legislative history to indicate the intent of Congress, a court might look to other
provisions and to the history of title disputes.
Historically, it was difficult to correct title problems involving the United States.
The United States, as the federal sovereign, is immune from suit (but 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. The Supreme Court has held that the Quiet Title Act (QTA) of 197215 is
now the exclusive means by which adverse claimants can challenge the United States’

9 43 U.S.C. § 1745(a).
10 43 C.F.R. § 1864.0-2(b).
11 Former 43 C.F.R. § 1864.1-1(a).
12 See, e.g., Calhoun County v. United States, 132 F. 3d 1100, 1103 (5th Cir. 1998).
13 A computer search of the U.S. Code finds no instance where Congress has approved a similar
definition of “state.”
14 S.Rept. 94-583 at 50-51 (1975).
15 P.L. 92-562, 86 Stat. 1176, 28 U.S.C. § 2409a.

title to real property in court.16 The Court has held that the waiver of sovereign immunity
in the QTA is to be construed narrowly in favor of the United States.17 The QTA
mentions that the United States may file disclaimers of interest during the course of a
QTA suit, and cases indicate that if a court confirms the disclaimer, further jurisdiction
of the court ceases.18 However, the cases also make clear that the QTA is the exclusive
judicial remedy for controverted claims, and that a court may refuse to confirm a
disclaimer of interest issued in the context of a QTA suit.19
FLPMA was a complicated and detailed statute that developed over several years to
consolidate and modernize the statutes on the remaining public domain lands managed
by the Bureau of Land Management. One of the major policy changes of FLPMA was to
put in place a policy of retention of the remaining federal lands, unless certain facts
justifying disposal are present.20 The general policy of the government is that there must
be some authority for the disposal of federal property to be lawful.21 Issuance of a
disclaimer is not a conveyance but indicates that there is no interest of the United States
in a particular property. Given the FLPMA policy of retention of lands, an argument may
be made that a conservative interpretation of the scope of §315 is prudent, and the process
should not be used to determine title. On the other hand, the brevity of § 315 and the
sparse legislative history may allow a considerable range of discretion to the Secretary.
It also is not clear whether the disclaimer process can be used to disclaim less than
a full fee title interest in lands, or, if so, whether disclaimers are appropriate in the R.S.
2477 context. The explanatory materials with the new regulations note that there have
been only 62 disclaimers issued under § 315 since its enactment in 1976,22 and none
resolved R.S. 2477 issues.
Congressional Language on Regulations “Pertaining To” R.S. 2477.
Language enacted by Congress relative to R.S. 2477 may apply to the expansion of the
availability of disclaimers to adjudicate and acknowledge R.S. 2477 claims. Following
the issuance of proposed R.S. 2477 regulations in 1993 that generated controversy,
Congress enacted a prohibition on using appropriated funds to promulgate or implement
a rule concerning R.S. 2477 rights of way. This approach was reiterated and broadened
in the 1997 Omnibus Appropriations Act which stated:
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

16 Block v. North Dakota, 461 U.S. 273 (1983).
17 Id. at 287.
18 28 U.S.C. § 2409a(e).
19 LaFargue v. United States, 4 F. Supp. 2d 580 (E.D. La. 1998).
20 43 U.S.C. § 1701(a)(1).
21 18 U.S.C. § 641.
22 68 Fed. Reg. 498.

2477 (43 U.S.C. 932) shall take effect unless expressly authorized by an Act of23

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 permanent law24
and hence an additional enactment was unnecessary. There have been no further
statutory prohibitions since and no further attempts at R.S. 2477 regulations. Committee
report language states that the statutory language “does not limit the ability of the
Department to acknowledge or deny the validity of claims under R.S. 2477 ....”25 The
Clinton Administration submitted a legislative proposal on R.S. 2477, but it was not
Arguably, § 108 of P.L. 104-208 technically only prevents rules that set out specific2627
standards for R.S. 2477 rights of way, and is unrelated to the disclaimer rule changes.
It can also be argued that the Utah MOU and the new DOI guidance confirm that the new
disclaimer regulations are to be a part of a new adjudication process to clear up R.S. 2477
claims.28 The expansion of parties who may now qualify to file for disclaimers and fit
within the waiver of the 12-year limitation on administrative claims, many applications
may now be filed for § 315 disclaimers related to R.S. 2477 rights of way.29 This fact,th
combined with the DOI use of the 10 Circuit approach to evaluating compliance with the
elements of a valid R.S. 2477 grant, may result in the use of the administrative disclaimer
process to validate many more R.S. 2477 rights of way than in the past. It is not known
whether lawsuits will challenge this process.
Legislation in the 109th Congress. H.R. 3447 would define the crucial terms
in the R.S. 2477 grant and would establish agency processes for determining the validity
of R.S. 2477 rights of way, subject to judicial review. The bill was referred to three
subcommittees of House Resources Committee on July 26, 2005, but no further action has
been taken.

23 P.L. 104-208, § 108, 110 Stat. 3009-200 (1996).
24 See H.Rept. 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, concluding that § 108 was
permanent law.
25 H.Rept. 104-625 at 57-58 (1996).
26 H.Rept. 104-625, at 58 (1996).
27 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.Rept. 105-160
(1998) in United States v. Garfield County, 122 F. Supp. 2d 1201, 1236 (C.D. Ut. 2000)
28 68 Fed. Reg. 497.
29 In commenting on the proposal, some counties objected to the costs that will result from their
expected filings, indicating that “hundreds” of filings for routes could be involved in some
counties. See 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 the fees may
be waived.