What is R.S. 2477?
Revised Statute 2477 (Section 8 of the Mining Act of 1866) is a federal law that authorized construction of roads across federal public lands.
“The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
This law helped settle the West for 110 years. Residents of Utah, visitors, pioneers, and settlers created and used thousands of roads across public lands for farming, ranching, hunting, recreating, mining, and connecting communities. We continue to use many of these routes daily and some occasionally or seasonally.
Congress repealed R.S. 2477 in 1976, and enacted the Federal Land Policy and Management Act (FLPMA). This law departed from pro-development land policy and established a preference for retaining lands in federal ownership. Nonetheless, Section 701 of FLPMA preserved all R.S. 2477 rights-of-way that existed at the time it was passed and kept them open for public use:
“Nothing in this Act or any amendment made by this Act, shall be construed as terminating any valid right-of-way or other land use right or authorization existing on the date of approval of this Act.”
Today, the State and Counties have to rely on R.S. 2477 to establish ownership of routes that have been used continuously for ten years prior to 1976.
Why Do We Have Disputes Over R.S. 2477 Roads?
There is no formal administrative or judicial process under FLPMA to confirm the State and counties’ ownership of R.S. 2477 rights-of-way. Sometimes, the federal government may manage certain routes on its land without considering local, county, and State interests. Environmental groups with strong conservation interests also often want to participate in public land and route management decisions. The question of “who owns a road” becomes central when these interests are at odds.
Burr Trail Litigation – First R.S. 2477 Lawsuit in Utah
In 1987, environmental groups filed the first R.S. 2477 lawsuit in Utah. They sued the federal government and Garfield County officials to stop the county’s improvement work on the Burr Trail. The Burr Trail, generally recognized as an R.S. 2477 right-of-way, is a historic highway in Garfield County used by the public since late 1800s.
The federal judge decided in favor of Garfield County allowing it to make reasonable and necessary improvements to the Burr Trail for safe travel. The only section excluded from improvements was the road segment next to a wilderness study area. Read the complete published decision in Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988).