R.S. 2477 granted a “right of way for the construction of highways over public lands, not reserved for public use” to facilitate the settlement of the West. From 1866 through its repeal in 1976, thousands of roads were constructed without any formal process or permitting system. R.S. 2477 was an open-ended and self-executing grant that did not require an entry, application, license, patent, or deed on the federal side. It likewise did not require any formal act of public acceptance to establish a valid route.
In the 1970s, the federal public lands policy shifted from development of unreserved lands to conservation and preservation of lands in federal ownership. In 1976, Congress repealed R.S. 2477 by passing the Federal Land Policy and Management Act (FLPMA). Nonetheless, FLPMA grandfathered R.S. 2477 rights-of-way existing on the day of the repeal. Unfortunately, Congress again did not establish any process for recognition of existing R.S. 2477 rights-of-way.
There were very few court cases involving R.S. 2477 prior to its repeal. Federal managers had no reason to question use of the land for travel because these roads increased the value of public lands, facilitated settlement, and benefited surrounding communities. Consequently, no one had incentive to raise or resolve potential R.S. 2477 claims. Most often state courts adjudicated R.S. 2477 claims brought by private landowners wanting to use roads across their neighbors’ properties before those properties had passed from federal ownership. The United States rarely appeared in these cases because federal property interests were not implicated. Post-FLPMA, the validity of a claimed R.S. 2477 right-of-way became a flash point with many opposed interests at stake.
In interpreting R.S. 2477, the courts borrow from state law. (For example, in Utah, the state statute requires ten years of continuous public use in order for a route to become a public road.) Different states had varying levels of success proving R.S. 2477 claims partially because of different state laws. A brief survey of other states’ R.S. 2477 claims follows.
Utah aside, Alaska is the state most significantly involved in pursuing R.S 2477 cases. From 1993-1995, Alaska’s Department of Natural Resources created the R.S. 2477 project which researched more than 1,000 routes to determine their eligibility. The 600 routes that qualified as R.S. 2477 rights-of-way under state standards were adopted by the Alaska Legislature in AS 19.30.400. In 2011, the Department of Natural Resources’ Public Access Assertion and Defense Unit and the Office of History and Archaeology conducted field work to determine the location and condition of potential routes. Alaska also consulted with representatives from Utah to discuss the challenges associated with preparing R.S. 2477 claims for litigation. Alaska continues to pursue its R.S. 2477 claims. The following are some of Alaska’s R.S. 2477 cases.
Hamerly v. Denton, 359 P.2d 121 (Alaska 1961): explaining that the offer of a right-of-way under R.S. 2477 could be accepted by (1) “some positive act on the part of the appropriate public authorities of the state, clearly manifesting an intention” to accept it or (2) by “public use for such a period of time and under such conditions as to prove that the grant has been accepted.” Id. at 123.
Shultz v. Dept. of the Army, 10 F.3d 649 (9th Cir. 1993): recognizing that a landlocked property owner, whose only access to his property was over an Army base, could establish a right-of-way road so long as the termini were fixed: the entire route need not be fixed to be a valid R.S. 2477 road. The court concluded that the manner of travel was irrelevant. A footpath was as equal an R.S. 2477 claim as a wagon road. The court also recognized that the 12 year statute of limitations under the Quiet Title Act began when “present day patterns of travel across the base [were] interfered with” and not when the Army acquired the base in 1917. Id. at 662. This opinion was later withdrawn by the 9th Circuit on the government’s petition for rehearing and superseded with an opinion finding that Shultz did not factually establish a continuous R.S. 2477 right-of-way under Alaskan common law. See Shultz v. Dept. of the Army, 96. F.3d 1222 (9th Cir. 1996).
Alaska v. Lonewolf (Alaska Superior Court 2012): when a private landowner blocked an R.S. 2477 right-of-way, the state successfully obtained a temporary restraining order and preliminary injunction. The court ruled that there was a valid R.S. 2477 right-of-way across the private property and entered judgement against the private landowner in March 2013.
Dickson v. Alaska (Alaska Superior Court): active litigation where a private landowner sued the state to prevent use of a portion of the historic Iditarod Trail.
Ahtna, Inc. v. Alaska (Alaska Superior Court): active litigation where Ahtna sued the state claiming that a potion of road is not a valid R.S. 2477 right-of-way.
Alaska v. United States, et al. (District of Alaska): active litigation where Alaska seeks to quiet title to 6 rights-of-ways that cross federal lands and Native allotments.
Several Counties in California have declared some routes as R.S. 2477 rights-of-way by publishing notice of these claims in the following county commission resolutions:
- Board of Supervisors of the County of Inyo, California, Reaffirming and Establishing Standards for the Recognition of Rights-of-Way in Accordance with the United States Revised Statute 2377, Res. 2002-36 (May 14, 2002)
- Board Of Supervisors of the County of Imperial, California, Asserting County Road Rights-of-Way Created Under United States Revised Statute 2477 Throughout Imperial County, Res. 2002-24 (Mar. 26, 2002)
- Board Of Supervisors of the County of San Barnardino, California, Reaffirming Road Rights-of-Way in Accordance with Revised Statute 2477, Res. 2001-241 (Sept. 18, 2001) (includes road in the Majoave Nat’l Preserve).
In 2006, the County of San Bernadino filed suit in the United States District Court for the Central District of California on 14 routes claiming R.S. 2477 status for these rights-of-way. Some of the roads were located in Mojave National Preserve. The case was resolved via a settlement agreement between the County, the Bureau of Land Management, and the National Parks Service. The United States recognized that the County held valid right-of-way over 8 of the 10 roads located in the Mojave National Preserve. However, the agreement then stipulated that the County would convey to the United States its interest in the aforementioned roads in order for the National Park Service to continue to maintain and administer the roads in accordance with the laws governing the national parks.
Several counties in Colorado have claimed R.S. 2477 rights-of-way. Most notably, Moffat County passed “A Resolution Recognizing Rights-Of-Way Established Over Public Lands Under R.S. 2477” in January 2003. In 2002, Moffat County created an inventory protocol to determine which routes were valid R.S. 2477 rights-of-way. Moffat County then developed a map for review by various federal agencies. After the review period, Moffat County asserted it had valid R.S. 2477 rights-of-way across all routes on the map.
Colorado Senator Mark Udall tried to resolve the R.S. 2477 debate by introducing H.R. 1639 during the 2003-2004 Congressional Session. The bill, R.S. 2477 Rights of Way Act of 2003, provided that R.S. 2477 claims should be resolved by each administrative agency before being subject to review by courts. It also presumed that R.S. 2477 claims were abandoned on any lands involving a conservation system unit, an inventoried roadless area, or wilderness study area unless such use of the road was open and notorious. This bill never made it out of committee and has not been reintroduced.
The State of New Mexico has never brought any action under R.S. 2477. However, several private plaintiffs have tried, unsuccessfully, to assert R.S. 2477 rights-of-way claims against the United States. In Kinscherff v. United States, 586 F.2d 159 (10 Cir. 1978), the Court held that a private plaintiff could not sue under the Quiet Title Act to enforce a R.S. 2477 claim because private citizens do not have a property interest in public roads. The holding of this case does not prevent the state from suing the United States to quiet title to public roads but does prohibit individuals and groups from pursuing such action.
In Hamaatsa, Inc. v. Pueblo of San Felipe, 310 P.3d 631 (2013), Hamaatsa, Inc. seeks a declaration that a road crossing land granted from the United States to the Pueblo Indians that is necessary to access Hamaatsa’s property is a valid R.S. 2447 right-of-way and access along the road cannot be restricted by the Pueblo of San Felipe. Litigation is ongoing as the lower court will now determine whether a valid R.S. 2477 right was created.