R.S. 2477 FAQ

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What is R.S. 2477?

R.S. 2477 is Revised Statute 2477—originally Section 8 of the Mining Act of 1866 (repealed by the Federal Land Policy and Management Act of 1976 (FLPMA) on October 21, 1976). This law granted “the right-of-way for the construction of highways over public lands, not reserved for public uses . . . ” Between the 1866 and 1976 the public, particularly western settlers, established many roads across public lands. These roads helped form the foundation of our current transportation system. They give access to recreational opportunities on public lands and serve as thoroughfares between cities and towns.

What is a public “right-of-way”?

Public “right-of-way” is a legal term describing the right of all members of the public to travel on a route regardless of who owns the underlying land. For example, a public route may pass over lands owned and managed by the federal agencies or private individuals.

What is an R.S. 2477 right-of-way grant?

The R.S. 2477 grant is self-executing. This means that the valid property interest vests once the terms of the grant had been fulfilled. R.S. 2477 did not require any notice or application to accept the grant; instead, state laws supplement the federal law and govern the acceptance. In Utah, the public must have used a route continuously for ten years to establish a public right-of-way.

Did the Congress repeal R.S. 2477?

FLPMA repealed R.S. 2477 on October 21, 1976. Nevertheless, the new law recognized all prior vested R.S. 2477 rights-of-way: “Nothing in this title shall have the effect of terminating any right-of-way . . . hereto issued, granted, or permitted.” (FLPMA, Section 509(a)). Although the federal government withdrew the original grant, the states and counties still hold valid property interests in every route established under R.S. 2477.

Why do we have disputes over R.S. 2477 roads?

FLPMA does not contain administrative or judicial mechanisms to confirm acceptance or grant of an R.S. 2477 right-of-way. This creates uncertainty about who owns the routes crossing public lands. Sometimes, the federal government manages roads on its lands with little consideration for local, county, and state interests. In addition, environmental groups with strong conservation agendas are eager to participate in public land and route management decisions. Quiet often all of these interests are at odds. Then, it becomes necessary to determine who owns the rights-of-way.

What is a quiet title action and how does it apply to R.S. 2477 roads?

The federal Quiet Title Act allows private parties and states “to adjudicate a disputed title to real property, in which the United States claims an interest . . . ” (28 U.S.C. § 2409a(a)). Utah can settle its claims to R.S. 2477 roads under this authority.

Is it true that under R.S. 2477 Utah plans to build new highways on federal lands?

Utah has no such plans. Under R.S. 2477 grant, historical use of a route limits the scope or width of a road. R.S. 2477 does not allow Utah to build new roads on federal lands. R.S. 2477 rights-of-way could not be established after the date when R.S. 2477 was repealed (October 21, 1976).

Is Utah interested in building roads or protecting the environment?

Utah cannot build new roads under R.S. 2477. However, recognition and use of existing R.S. 2477 roads protects the environment by eliminating the need to go off-road. In addition, recognition of existing R.S. 2477 roads will preserve access to areas that are important to the lives and livelihoods of local residents and others who use these roads. Utah’s philosophy is careful multiple use.

Why did Utah file lawsuits against the federal government over R.S. 2477 roads?

Utah has spent more than a decade negotiating in good faith with the federal government to settle its claims to these roads. Unfortunately, the negotiations were not successful. The United States’ position now is that Utah has to prove its title to R.S. 2477 roads in federal court. The federal government refuses to recognize or allow Utah to use any other avenues.

In 2012, the Utah Attorney General’s Office filed 22 lawsuits in the federal court claiming title to R.S. 2477 rights-of-way. Utah and each county asked the court to rule that the claimed R.S. 2477 rights-of-way are valid because they existed prior to 1976 and have been open to public use and maintained by the counties.

What must Utah prove to establish R.S. 2477 rights-of-way?

Utah must show continuous public use of each claimed right-of-way for a period of at least ten years before October 21, 1976, the effective date of FLPMA. For the rights-of-way claimed within National Parks or National Monuments established before 1976, the state must show ten years of public use before the date the park or the monument’s creation.

What is PLPCO’s role in R.S. 2477 litigation?

PLPCO assists the Utah Attorney General’s Office in R.S. 2477 lawsuits through research and litigation support. It is currently assisting with depositions of elderly and infirm witnesses who used or maintained R.S. 2477 roads before 1976. These Utah residents confirm that R.S. 2477 routes have been historically important to their lives and livelihoods. Many of them are getting older, and their personal accounts may be lost with the passage of time. Attorneys from PLPCO and the Attorney General’s Office depose these witnesses to preserve their valuable memories and present them later in court.

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