Federal Court Closes the Gate on R.S. 2477 Claims

Collectively, counties, local governments, and in a few cases private parties have asserted jurisdiction over tens of thousands of R.S. 2477 rights-of-way. They would use the 135-year-old mining law to gain motorized access to and “improve” so-called highways (in many cases, two-tracks, cow paths, and river bottoms) across BLM lands, Forest Service lands, National Parks, and even designated Wilderness areas.

Enacted as part of the Mining Act of 1866, R.S. 2477 provides - in full - that: “The right-of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” R.S. 2477 was later repealed by the Federal Lands Policy and Management Act of 1976 (FLPMA), however, the repeal was not retroactive but was explicitly subject to valid existing rights. In other words, R.S. 2477 rightsof-way that were perfected prior to 1976 are valid notwithstanding FLPMA. Thus began the rush of anti-Wilderness advocates claiming to have perfected rights-of-way pre-dating 1976.

For decades, a debate has raged over what exactly is required to perfect an R.S. 2477 rightof-way. To have a valid R.S. 2477 right-of-way, of course, one must have “constructed” a “highway” over “public lands” that, at the time, were not “reserved for public uses.” Not surprisingly, these terms and phrases have meant different things to different people. The handful of federal court decisions dealing with R.S. 2477 have not definitively settled the matter. Until now....

Federal Court Limits R.S. 2477 Application

Just before press time a federal district court in Utah decided a case filed by the Southern Utah Wilderness Alliance and the Sierra Club (SUWA, et al v. BLM, et al), and sharply limited the ability of local governments to claim jurisdiction over trails across federal lands. The court upheld BLM’s rejection of several purported R.S. 2477 highways, and in the process construed key R.S. 2477 terms and phrases. This decision has tremendous precedential value for activists fighting these “phantom roads.” It will also likely be appealed to the 10th Circuit.

“Construction:” First, the court agreed with the BLM that “construction” means “mechanical construction” and requires “purposeful, physical building or improving.” Neither the mere passage of vehicles across the land, nor haphazard, unintentional, or incomplete action could suffice. The court based its ruling on a number of factors. First, the plain meaning of the word “construction” was entirely consistent with BLM’s position. Second, BLM’s interpretation comported with the federal land use policy objectives in FLPMA. Finally, BLM’s interpretation was strengthened by the fact that the Department of Interior - the agency charged with enforcing R.S. 2477 - had consistently (and for years) taken the position that “construction” requires “actual building.” According to the court, “[i]t is unlikely that Congress would have intended that the term ‘construction’ in R.S. 2477 be read in a way that might have rendered later attempts to determine what rights-of-way had been established nearly impossible.”

Relying on Utah state law, the county claimants had argued that “continued use” was sufficient to constitute “construction.” Finding no contrary judicial precedent directly on point, and observing that state law “cannot be used to ‘disregard or emasculate’ the meaning of R.S. 2477,” the court declined to apply state law. Instead, the court applied established principles of statutory construction, and accordingly adopted the “most persuasive” interpretation - that of the BLM.

“Highway:” The court likewise agreed with the way the BLM interprets the term “highway.” According to the BLM, R.S. 2477 “highways” must be public in nature, and must have been so when the underlying lands were available for R.S. 2477 purposes. This would disqualify routes used by “a single entity” or those “used only a few times.” Moreover, R.S. 2477 “highways” must connect the public with identifiable destinations or places” and cannot exist independently of destinations “used by and open to the public.”

“Not Reserved for Public Uses:” The court’s ruling on this point is not necessarily applicable to all R.S. 2477 claims, but it does have enormous implications for lands that the federal government had set aside solely for coal development. The court upheld BLM’s conclusion that these lands were “reserved for public uses” for purposes of R.S. 2477. The upshot is that R.S. 2477 rights-of-way on these lands are not valid unless perfected prior to the reservation.

R.S. 2477 Claims on Forest Service vs. BLM Lands

Most commonly, R.S. 2477 disputes involve alleged rights-of-way on public lands managed by the Bureau of Land Management. Less typical are R.S. 2477 claims associated with Forest Service lands. While admittedly fewer in number, R.S. 2477 claims on Forest Service lands are no less troublesome, and they similarly have threatened - and will continue to threaten - wild, forested areas throughout the West. For example, the existence of an R.S. 2477 right-of-way is one of several arguments that private litigants are advancing to support their desire to construct and improve a 20-mile “road” through designated Wilderness in Montana. Elsewhere in Montana, motorized advocates appear to be trying to set up an R.S. 2477 claim to get an illegal snowmobile trail - previously closed and revegetated - re-opened. The Rio GrandeNational Forest in Colorado and the JarbidgeNational Forest in Nevada are other national forests that have served as settings for R.S. 2477 disputes.

It is fairly well known that on BLM lands, only those rights-of-way that were perfected prior to FLPMA’s effective date - October 21, 1976 - are valid. All others are subject to FLPMA’s statutory scheme for issuing rights-of-way over public lands.

Perhaps less well known is that Forest Service lands stand on a slightly different footing vis a vis R.S. 2477 claims. The distinction - however subtle - can make all the difference to activists fighting R.S. 2477 “highways” on Forest Service lands. Even though it was FLPMA - enacted in 1976 - that repealed R.S. 2477, R.S. 2477 itself, as discussed above, specifies that only those “highways” that were “constructed” prior to the public land in question being “reserved for public purposes” may be valid. Unlike BLM lands, most Forest Service lands were reserved” in this sense decades ago. With the passage in 1891 of the National Forest System Enabling Act, national forests were closed - with limited exceptions - to any further unilateral appropriations of public land for roads and trails. So, unlike BLM lands - on which R.S. 2477 rights-of-way may be valid if perfected prior to 1976 - R.S. 2477 rights-of-way on Forest Service lands must have been perfected before the forest at issue was reserved in the first place.

In Adams v. United States, the Ninth Circuit Court of Appeals explained that “[t]o establish [a valid RS 2477 claim], [a claimant] must show that the road in question was built before the surrounding land lost its public character ....” See Adams, 3 F.3d 1254, 1258 (9th Cir. 1993). National Forests either lost their public character in 1891 when, with the passage of the Enabling Act, they formally became a part of the National Forest System, or at whatever later point such forests were officially added to the System. In the Adams case, the relevant date was November 5, 1906 - the date on which President Roosevelt “reserved” the lands now called the ToiyabeNational Forest. The R.S. 2477 claim thus failed because there was no credible evidence showing that the road in question came into existence prior to 1906.

Finally, remember that even valid R.S. 2477 highways are subject to regulation by the Forest Service. Clouser vs. Espy, 42 F.3d 1522, 1537-38 (9th Cir. 1994).

Conclusion

The decision issued in the Southern Utah Wilderness Alliance case holds considerable promise for activists who are now or who may in the future find themselves challenging the validity of R.S. 2477 rights-of-way on public lands. This decision for the first time and in plain and definitive terms offers judicial interpretations of several key terms in R.S. 2477. The case should make a big difference in how public land managers and other decision-makers evaluate R.S. 2477 claims. Finally, for activists who focus on Forest Service lands, it is important to keep in mind that it is more difficult to establish R.S. 2477 claims there. Claimants have a higher burden of proof in that they must prove that the right-of-way was established prior to the time that the particular forest was reserved in the first place.

— Ronni Flannery began working for the National Trails & Waters Coalition in September 2000 and provides legal and strategic assistance to grassroots organizations and individual activists challenging off-road vehicle use on public lands. Ronni has a BS from the University of Wisconsin, and a JD from University of Wisconsin Law School. She works out of the Wildlands CPR office in Missoula, MT