RIGHTS-OF-WAY 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON NATIONAL PARKS, FORESTS, 

AND LANDS 

OF THE 

COMMITTEE ON 

RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 

ON 

H.R. 2081 

TO RECOGNIZE THE VALIDITY OF RIGHTS-OF-WAY GRANTED UNDER 

SECTION 2477 OF THE REVISED STATUTES, AND FOR OTHER PURPOSES 

93--803 cc 

JULY 27, 1995-WASHINGTON, DC 

Serial No. 104-31 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1995 

For sale by the U.S. Government Printing Office 

Superintendent of Documents. Congressional Sales Office. Washington. DC 20402 

ISBN 0-16-047770-0 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chairman 

JAMES V. HANSEN, Utah 

JIM SAXTON, New Jersey 

ELTONGALLEGLY,Califurnia 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

WAYNE T. GILCHREST, Maryland 

KEN CALVERT, California 

RICHARD W. POMBO, California 

PETER G. TORKILDSEN, Massachusetts 

J.D. HAYWORTH, Arizona 

FRANK A. CREMEANS, Ohio 

BARBARA CUBIN, Wyoming 

WES COOLEY, Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, California 

WALTER B. JONES, JR., North Carolina 

WILLIAM M. (MAC) THORNBERRY, Texas 

RICHARD (DOC) HASTINGS, Washington 

JACK METCALF, Washington 

JAMES B. LONGLEY, Maine 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

W.J. (BILLY) TAUZIN, Louisiana 

GEORGE MILLER, California 

NICK J. RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

DALE E. KILDEE, Michigan 

PAT WILLIAMS, Montana 

SAM GEJDENSON, Connecticut 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

TIM JOHNSON, South Dakota 

NEIL ABERCROMBIE, Hawaii 

GERRY E. STUDDS, Massachusetts 

SOLOMON P. ORTIZ, Texas 

OWEN B. PICKETT, Virginia 

FRANK PALLONE, JR., New Jersey 

CALVIN M. DOOLEY, Californi~ 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM F ARR, California 

DA."'IEL VAL K!SH, Chief of Staff 

CHRISTIN'E KENNEDY, Chief Clerk/ Administrator JOHN LAWRENCE, Democratic Staff Director DAVID DYE, Chief Counsel 

SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AL'l"D LA...~DS 

JAMES V. HANSEN, Utah, Chairman 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

RICHARD W. POMBO, California 

PETER G. TORKILDSEN, Massachusetts 

J.D. HAYWORTH, Arizona 

BARBARA CUBIN, Wyoming 

WES COOLEY, Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, California 

JOHN B. SHADEGG, Arizona 

BILL RICHARDSON, New Mexico 

NICK J. RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

DALE E. KILDEE, Michigan 

PAT WILLIAMS, Montana 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

GERRY E. STUDDS, Massachu~tts 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

NATHAN DEAL, Georgia 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

ALLEN FREEMYER, Staff Director/ Counsel 

STEVE HODAPP, Professional Staff 

(II) 
CONTENTS 

Hearing held July 27, 1995 .................................................................................... . Text of H.R. 2081 .................................................................................................... . Memorandum to Republican members, Subcommittee on National Parks, Forests and Lands on H.R. 2081 ............................................................................ .. Statements of Members: 

Hansen, Hon. James V., a U.S. Representative from Utah and Chairman, 

Subcommittee on National Parks, Forests and Lands .............................. . Richardson, Bill, a U.S. Representative from New Mexico .......................... . Statements of witnesses: 

Fayad, Libby, Staff Council, National Parks and Conservation Association ................................................................................................................ . Prepared statement .................................................................................. . Groene, Scott, Staff Attorney, Southern Utah Wilderness Alliance ............ . 

Hjelfe~efi:h~r~,a~ffi~~tor.sj;~~i;,:i''c~~~~~i;··E~~~~~~~~t:·&··fuhii~·'L~~d·~ Issues, Washington County, Utah .............................................................. . Prepared statement .................................................................................. . Leshy, John D., Solicitor, U.S. Department of the Interior ........................ .. Prepared statement .................................................................................. . Liston, Louise, Garfield County Commissioner ............................................ . 

Mas~r13::!1~.ali~:k; s~;;~·&···~~~~~~ii~~:··r~~··Ai'~·~k~··si;;.;;~·P~~~id~~t Drue Pearce and Alaska State B-ouse Speaker Gail Phillips .................. .. Prepared statement .................................................................................. . Additional material supplied: 

Coffey, PerryAnne, Director, Government Affairs, National Water Re- sources Association: Letter of August 10, 1995, to Hon. James V. Han- sen ................................................................................................................. . Groene, Scott, Southern Utah Wilderness Alliance: Memo of July 21, 

1995, from The Utah Wilderness Coalition .............................................. .. Hjelle, Barbara, Office of Special Counsel, Environment & Public Lands 

Issues, Washington county, Utah: 

Settled Precedent on R.S. 2477 .............................................................. .. R.S. 2477 Highways in Utah Photograph Index .................................... .. Masek, Beverly, Alaska State Representative: 

Department of Natural Resources: State of Alaska historic transportation routes .......................................................................................... . Katz, John W., Director of State/Federal relations and special counsel 

to the Governor of Alaska: Letter of July 26, 1995, to Hon. James 

V. Hansen .............................................................................................. . 

(III) 

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RIGHTS-OF-WAY 

THURSDAY, JULY 27, 1995 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL PARKS, FORESTS & LANDS, COMMITTEE ON RESOURCES 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:00 a.m., in room 

1324, Longworth House Office Building, Hon. James Hansen 

[chairman of the subcommittee] presiding. 

STATEMENT OF HON. JAMES V. HANSEN, A U.S. REPRESENTATIVE FROM UTAH AND CHAIRMAN, SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND LANDS 

Mr. HANSEN. The Subcommittee on National Parks, Forests and 

Lands convenes to hear testimony on H.R. 2081, the Revised Statutes 2477 Rights-of-Way Settlement Act sponsored by myself and 

others on the Committee. As members of the subcommittee are 

aware, R.S. 24 77 rights-of-way provide rural citizens access across 

the expanses of Federal lands in the West and in Alaska. 

For 110 years, counties, cities, States and individuals were allowed to establish necessary rights-of-way across unreserved Federal lands to provide travel routes between towns, to schools and 

to homes. In 1976, Congress terminated this ability to establish 

new rights-of-way but failed to provide the mechanism to adjudicate the established routes. H.R. 2081 seeks to resolve this issue 

in a reasonable and efficient manner. 

Secretary Babbitt has pending regulations that would place an 

incredible burden on the holders of these rights-of-way to prove 

what was already granted under the 1866 statute. H.R. 2081levels 

the playing field by providing a procedure through which all rightsof-way may be settled. 

Now I want you to listen to this next part, Mr. Solicitor. Critics 

will claim that this places an impossible burden on the Secretary 

to disprove these claims, yet, it is nothing more than what the Secretary himself expects from State and local governments. The simple fact is that rights were granted by Congress, those rights were 

accepted and our task is to catalog those rights and to determine 

which ones are valid and which ones are not valid. 

I want to make it clear regardless of what critics say, the issue 

is not tied to Utah Wilderness or any wilderness. That is a worn 

out scare tactic and does not hold water. The ability to accept these 

rights was terminated in the same legislation that initiated the 

BLM wilderness inventories of 1976. 

(1) 
2 

These are valid existing rights that must be adjudicated in a fair 

and reasonable manner. I would hope that we can end this hype 

and stop using this issue to pursue other ends. Let us find a way 

to settle this issue once and for all. This pertains to all of the areas 

in the west and many members are very concerned about it. You 

may think, well, if they are so concerned, why aren't they here? 

The main reason is we find ourselves in a situation where we are 

extremely busy. 

We are trying to wrap this thing up. We are holding caucus 

meetings, both the Democrats and Republicans, and I had to walk 

out of some pretty important meetings to get here on time and only 

made it by 15 seconds so I apologize for that but we did make it. 

Mr. HANSEN. We will now ask the Solicitor to come up here and 

I especially want you to respond, if you would, and what we have 

discussed among our group is why the Secretary wants to put the 

burden on the people and our bill merely puts it on the Secretary. 

Actually, most of our folks would rather go back to the way it was 

prior to the 76 flipback but, sir, it is good to see you again and 

thank you for appearing. 

STATEMENT OF JOHN D. LESHY, SOLICITOR, U.S. 

DEPARTMENT OF THE INTERIOR 

Mr. LESHY. Thank you very much, Mr. Chairman. 

Mr. HANSEN. We are not going to limit your time because we 

want to hear everything you have to say. 

Mr. LESHY. Thank you very much. I am pleased to have the opportunity to come back here again and testify today on R.S. 2477 

and specifically on H.R. 2081. I will summarize my written statement, which elaborates on the reasons that the Department has to 

oppose this bill. In our judgment, it does more than simply level 

the playing field on R.S. 2477; it really stacks the deck in favor of 

R.S. 2477 claimants. 

It would make it very easy for anyone to file new and sometimes 

frivolous claims, and it would make it very burdensome on the government to reject the ones that do not meet the statutory criteria. 

We fear that under this bill the public lands could be littered with 

thousands of new rights-of-way. The net effect of this bill could also 

quite likely restrict, without compensation, existing rights in private property that were once public lands but can be subject to R.S. 

2477 rights-of-way. 

Under the bill, virtually anyone on the planet, frankly, who uses 

or could use an R.S. 2477 right-of-way could file a claim and has 

ten years to do so. The bill only requires to support that claim a 

notice, a map, and a general description of the right-of-way. The 

bill would then require the United States to accept or reject every 

claim within two years, no matter how poorly demonstrated, and 

then in order to protect the rights of the public the United States 

would have to file a lawsuit with respect to each claim that it rejected within two years in order to preserve its objections; otherwise, the claim is deemed valid. The bill would give the United 

States the burden of proof on all issues. 

Our fear is that in effect this bill would allow anyone to file a 

piece of paper and then require the government to file a lawsuit 

in order to disprove the claim no matter how poor the claim is. 
3 

This is really unprecedented, I think, in public land law; that the 

United States has to respond to any claim with a lawsuit to contest 

it. A claimant's failure, by the way, to file even this minimal notice 

within ten years has no effect on the claim because Section 5(b) 

goes on specifically to provide that failing to file the notice does not 

relinquish the claim. 

In short, our fear is that this bill would multiply rather than reduce the conflicts and confusion over R.S. 2477. The Department's 

goal in its rulemaking is to bring fair and prompt conclusion to the 

uncertainties left by the repeal of R.S. 2477 by Congress nearly 20 

years ago. This bill, in our judgment, does the opposite. It reopens 

indefinitely the opportunity that R.S. 2477 once provided for obtaining rights-of-way across Federal lands and does so at the expense of existing law, national parks, wildlife refuges, military 

lands, other sensitive Federal lands, as well as Indian and Alaskan 

native lands and private lands. 

Furthermore, the bill does not provide a workable process or 

standards to evaluate claims. Among other things, Section 5(c) applies State law to R.S. 2477 decisions without restriction, whether 

or not the State law is consistent with the terms of R.S. 24 77 itself. 

In our judgment, State law does have a role to play in R.S. 24 77, 

but it cannot operate to supersede Federal law and specifically supersede R.S. 24 77 itself. State laws that don't require the construction of highways, for example, don't meet the clear and plain requirements of R.S. 2477. 

Furthermore, the bill seems to say that State law applies regardless of when State law was enacted. The only State laws that the 

courts and the Department have recognized in the past as applicable are those that were in effect when the right-of-way was created 

or in effect as of the date of repeal of R.S. 2477. But this bill, as 

we read it, allows any State law passed tomorrow, next week or 

five years from now to apply to govern the R.S. 2477 rights-of-way. 

That is a clear departure from past practice. 

Let me emphasize our concern that the bill does not protect private property as well as public property. It does not consider the 

implications of creating access across public lands when those same 

rights-of-way pass over private, Indian or Alaskan native lands. 

And let me mention here a particular concern. We were contacted 

yesterday by the Alaska Federation of Natives, who just found out 

about the hearing and wanted me to relay to you, if I can, their 

request that the public record be kept open on this hearing for a 

couple of weeks so that they could submit some comments. 

Let me mention a few other specific problems with the bill. We 

disagree strongly with Section 3(d), which restricts standing to participate and challenge actions of the Department under this bill. 

We are greatly concerned with the fact that the bill places the burden of proof on the Government on all issues, even on those issues 

where the basic information to prove or disprove the claim is in the 

hands of the claimants, rather than the Government. This, by the 

way, reverses the longstanding rule of law that in public land 

grants ambiguities are resolved in favor of rather than against the 

Federal Government. 

Let me address, Mr. Chairman, as you mentioned in your opening statement, the burden allegedly put on claimants to rights-of-
4 

way by our proposed regulations. Let me emphasize, we have gotten more than 3,000 comments on those proposed regulations. The 

comment period is still open. We have not moved forward yet with 

final regulations. The comments range from strongly supportive to 

strongly opposed and all points of view in between. 

We would take, as we move forward through the process, a very 

careful look at the issue of burden that these proposed regulations 

allegedly place on claimants. We want this process to work. We 

want it to be fair. We do not want to impose undue burdens on people and that is an issue we would certainly address as we move forward through the rulemaking process. 

Finally, we also question the wisdom and the necessity of Section 

5(c) of the bill, which would provide new and quite restrictive procedures on R.S. 2477 rights-of way road closures. As written, this 

could seriously endanger public safety by precluding road closures 

in cases of flood, fire, or other dangerous conditions. Let me also 

emphasize that R.S. 2477 rights-of-way cross military bases and as 

we read 5(c) it could even endanger national security, because you 

might not be able to close a military base to public traffic on R.S. 

2477 rights-of-way in cases of national emergency without, I think 

it is, a one-year notice in the proposed bill. 

In short, the bill complicates, in our view, and prolongs the existing problems of dealing with R.S. 2477. I appreciate the opportunity to testify, and I am happy to answer questions. 

[The prepared statement of John D. Leshy can be found at the 

end of the hearing.] 

Mr. HANSEN. Thank you, Mr. Leshy. I appreciate your comments. 

Maybe you better check on national emergencies. You will find that 

the President can superimpose himself for any of these things. 

Under the Secretary's proposed rule any person could file an appeal 

to any claim and thereby tie up the system for decades. You don't 

want every person to have the ability to file a claim or we don't 

desire that every person be allowed to file an appeal that would tie 

up the claim for decades. How can we resolve this? 

Many of us feel that the regulations coming out are so one-sided, 

so unfair to the people, so in violation of what has happened for 

many years we are trying to find a middle ground. Now under the 

Secretary's rule any person could file an appeal and tie you up just 

as much as the other way. Is there a way to resolve this or are you 

folks in stone on this? 

Mr. LESHY. The proposed regulations, as I recall, take the general approach to administrative appeals that the Department takes 

in virtually all of its actions; that is, any person adversely affected 

by an action can file an administrative appeal, which is basically 

the same kind of standing requirement as the Federal courts apply. 

These are public lands, Mr. Chairman, and the public of all 

kinds, cattlemen, ranchers, miners, graziers, recreationists, all 

have an interest in how these lands are managed and many of 

them have an interest in the right-of-way access issues. We think 

that the current standing requirement to show adverse affect of a 

decision in order to appeal it actually works pretty well. 

The disruptive litigation that makes the newspapers on occasion 

affects a very small part of the business of the Department. We 
5 

would rather keep the channels open for aggrieved people to appeal. We think that is a price worth paying. 

Mr. HANSEN. Well, let me beg to differ with you. It has worked 

well because your regulations aren't in place. That is what we are 

concerned about is the proposed regulation. Right now we would 

agree with you it works well but your regulations aren't in place, 

and as you may know in the appropriation bill there is a moratorium against these being put in place. 

I am sure you recognize that in large part this bill we are proposing turns your regulations on their head. Instead of placing a tremendous unfunded and perhaps impossible mandate on the State 

and local government, it places a burden on the agency to take the 

responsibility. But you are the landlord of that area so we feel you 

should do it. Obviously, your proposed regulations are far from perfect and this bill is far from perfect. But what bothers me about 

the Department of BLM and the Department of Interior is that you 

are right and we are wrong. 

We do not accept that. We want to say maybe there is some middle ground we can come up to that would be acceptable to our people in Alaska, Utah, Nevada, Oregon, or wherever it may be. Our 

people still want to put their kids on school buses and go across 

that area. They still want to use those roads that they have had 

for years. Your regulations, in a way it looks like they said in one 

letter to me here comes the gestapo telling us what we can and 

can't do. 

I agree with your statement this is a republic land. I don't care 

who they are. They can be from New York or Florida but the guy 

in Panguitch, Utah, still has a right to go across that ground and 

we are just trying to protect that. Now how much in stone are you 

folks? Are we going to go to the mat on this or can we come up 

with some compromise? 

Mr. LESHY. As I said, Mr. Chairman, we are in the middle of a 

rulemaking process and we would be happy to work with you as 

we go through preparing the final rules. As I mentioned in my 

opening statement, the question of burden on local governments to 

claim these rights-of-way is an issue that we are very sensitive to. 

We want to make these regulations work. We are not locked in 

stone on the proposed regulations on that issue. 

We don't think that legislation is necessary, except there may be 

one point at which legislation would help, and that is to bring this 

process to a close. That is, this is a 130-year-old statute. It was repealed 20 years ago. There has to be some sort of end to this process. We think we have the authority administratively to bring an 

end to the process within a dozen or so years. If Congress wanted 

to legislate on that point we would welcome it. 

In terms of the burden issue and the confirmation issue, we 

think we can do this by rulemaking in a fair way, and we would 

be more than happy to work with you in achieving that result. 

Mr. HANSEN. In your opening remarks you talked about all the 

frivolous claims and I want the record clear that my intent in this 

legislation is to adjudicate these rights that existed as of October, 

1976 and certainly not to create new rights. What proof do you 

folks have that the net result in this bill could litter the public 

lands with thousands of new rights-of-way? I doubt if you have so 
6 

little confidence in your agency that you will not be able to disprove frivolous claims. 

If not, what have your BLM employees been doing out there on 

the ground for the past 19 years? Has the agency taken any efforts 

to catalog the roads on BLM lands regardless of whether they are 

claimed as RS. 2477 rights-of-way? 

Mr. LESHY. One of the concerns is, frankly, just the workload 

burden. In our view, under the bill, it would be too easy to file a 

claim. You essentially file a piece of paper and a map and you 

make a claim and then the Department has to file a lawsuit to disprove that claim. That is problem number one. Problem number 

two, as we read the bill, it appears to apply State law wholly to 

govern this process exclusively. Suppose a State that has a section 

line law (as a few States do) that says every section line is a rightof-way, without regard to whether a highway is constructed on it 

or not. This bill would appear to validate all those laws which 

would make, of course, a cross hatch one mile apart of rights-ofway across all public and private lands in the State. If this bill 

really means it when it says State law applies without restriction, 

that is the result we might have under this bill and that would be, 

I think, totally unacceptable to just about every user of public 

lands. 

Mr. HANSEN. In your testimony you state that a two-year time 

period for the agency to respond to a filed notice is too short a time 

period. 

Mr. LESHY. It is really that, plus I think more objectionable, the 

fact that if we respond within two years and say we don't think you 

have a right-of-way, that doesn't end the matter. What we then 

have to do within two years of that is file a Federal court lawsuit, 

which is a major undertaking in order to invalidate the claim. 

So every piece of paper filed that we think doesn't establish a 

right-of-way, we have to file litigation to contest it. It is so easy to 

file papers, you know, we have 400,000 mining claims out there. I 

would think we might have 400,000 rights-of-way claims. And that 

is 400,000 lawsuits that we would have to file under this bill in 

order to clear off these claims, some of which, because making 

claims is so easy, would undoubtedly be spurious. 

Mr. HANSEN. Yet in your own proposed regulations, you would 

require the holder of right-of-way to establish absolute proof that 

the right-of-way is valid so why is a two-year period sufficient for 

a financially strapped county but is not sufficient for the Departme·nt of Interior? 

Mr. LESHY. As I said, under the proposed bill the problem isbasically that it is so easy to file claims. We then have to respond 

within two years, and then we have to file a lawsuit to challenge 

and contest and clear the claim, no matter how spurious, and we 

have the burden of proof on all of these issues. That is why we say 

the deck is really stacked in favor of these claims and against the 

Government. 

Mr. HANSEN. Of course, we feel and many of our people out in 

those areas feel that it is absolutely the opposite on the regulations. In fact, the governor of one of our States said if you sat down 

and wrote these regulations and made them as bad as you could 

and then take it times 1,000, you would find what the regulations 
7 

are. And as we have gone partly through this, we feel the same 

thing. Mr. Leshy, under your proposed regulation, you place the entire 

burden of proof on the holder of a right to prove once again that 

a right was granted in 1866. Do you know what an enormous burden that is for these little financially strapped counties wherever 

they may be for entities to go back and try to figure this out all 

the way to 1866? Why is it so improper that this burden be shifted 

to the agency? You are the landlord. The BLM was fully functional 

in 1976. Just refer back to your own records and make a simple 

judgment as to whether or not you approve or object to the rightof-way. 

Mr. LESHY. Many of these rights-of-way, of course, were established after 1866. They could have been established anywhere up 

to 1976 on unreserved public lands. The proposed regulations' impact on, and the burden that they would place on, local governments has been, I believe, somewhat exaggerated. What we have 

talked about in the proposed regulations is things like evidence of 

construction and maintenance. 

If a highway is maintained by a county, there should be absolutely no problem with verifying that with very minimal evidence. 

We have no desire to put the local governments through an elaborate paperwork requirement for obvious rights-of-way. The problem 

is the ones that are not obvious. The problem is the ones that are 

either drawn on a map and don't exist on the ground, or simply 

don't show evidence of construction, such as Congress required in 

1866. 

Mr. HANSEN. But what you are telling us is you haven't kept sufficient records, and if that is the case, what makes you think the 

counties have done it? 

Mr. LESHY. We have kept no records under R.S. 2477 because 

there was no process ever created to keep records. In other words, 

there is no permitting requirement, no notice requirement, no requirement ever since 1866 to submit any of this information to the 

Government. 

Mr. HANSEN. But there has been no requirement on the counties 

to keep it, so under your regulations what you are saying is there 

has been no requirement but now we are asking you to say you 

have to do it since 1866. I can't understand this one-sided argument here. Here you are the big rich Federal Government. You are 

the ones who are supposed to keep all of these records. 

You are going to go to these poor little counties that don't have 

anything and switch their entire thing every four or five years with 

new commissioners, new regulators, new recorders, new treasurers, 

and you want them to do it under your regulations. I can't see the 

equity in that. 

Mr. LESHY. The context here is that Congress granted a rightof-way for highways that are constructed to cross unreserved public 

lands, and the question is whether a particular highway has been 

constructed across unreserved public lands. And the people who 

construct the highway should, if it is a legitimate highway, be able 

to show evidence that it was done, with minimal burden, and that 

is essentially what our proposed regulations are aiming to require. 
8 

Our aim in these regulations is not to require elaborate evidence 

or to contest obvious rights-of-way. There are clearly many out 

there that we would assume can be validated with minimal pain 

and paperwork, and if we can figure out a better way than our proposed regulations to do that, we are happy to consider it. The problem is always, of course, in the marginal or spurious cases where 

claims are made that do not really fit within the terms of the statute. 

Mr. HANSEN. No, I say, respectfully, Mr. Leshy, your testimony 

implies that the agency does not trust State or county government 

or citizens to file a notice in good faith. And I can tell you that coming from an agency that has attempted to intimidate and spark litigation by issuing trespass notices to counties in my State and in 

the State of Alaska and the State of Oregon and the State of California for fixing washed out roads, there is really not much trust 

in the agency that rights will not be frivolously denied by the agency under your proposed regulation. 

How do we handle this little gap of mistrust that we apparently 

have between the local folks and the big bad government? 

Mr. LESHY. We would certainly like to close that gap. In many 

States there is no problem as far as we can tell. There are a couple 

of places where there have been many, many thousands of miles 

of rights-of-way claimed, some of which we think don't exist or are 

exaggerated. So in our view it is considered, West-wide, a fairly localized problem. We have heard a lot of support for our regulations 

as well as some opposition. 

Again, let me emphasize that in the rulemaking process, we have 

not closed on this, and we would like the opportunity to prepare 

final rules that are constructive and that move this process forward. 

Mr. HANsEN. Many of our people in these counties that I referred 

to in the States feel that these regulations were drafted and their 

requests were completely ignored. I have got stacks of letters saying that. Why would they say that? 

Mr. LESHY. I am not sure, since we haven't completed the process. We haven't prepared final regulations. We haven't had an opportunity yet to respond to the comments received. 

Mr. HANSEN. Why is it such a problem in Utah and Alaska especially? 

Mr. LESHY. I am not sure. I think to some extent all public lands 

issues in Utah and Alaska have been controversial for the last 15 

years or so. Clearly, wilderness is tied up with this to some extent, 

but I am not exactly sure why most of the problems and controversy seems to be confined to those two States. 

Mr. HANSEN. Our people in Utah tell us there are 5,000 claims 

alone in Utah pending. 

Mr. LESHY. Five thousand rights-of-way claims? 

Mr. HANSEN. Yes. 

Mr. LESHY. That could be right. 

Mr. HANSEN. Five thousand times these little counties are ing 

to have to prove under your regulations that they have a ri -ofway, and they have to go all the way back to 1866 to prove it. This 

will drain them. We had something called the Burr TraiL We had 

a pretty good relationship with our environmental community for 
9 

years until the Burr Trail came up, and then the little county of 

Garfield had to come up with hundreds of thousands of dollars and, 

as I recall, they had to turn to the Governor and his contingency 

fee, if I am correct, to even pay the legal fees on that, probably the 

worse example of the Government that I have ever seen in )llY entire life. 

The Burr Trail has been around since I was a kid. I used to drive 

a jeep down it when my dad had uranium claims down in that particular area, a well-established road. In fact, I took the park director down there at one time. He thought it was like the Bright 

Angel Trail or the Kaibab Trail down in the Grand Canyon, and 

I still remember his comments. He said, "Hell, Jim, this is just a 

road." I said, ''Yes, you are right, Mr. Mott, that is all it is. But 

anyway I am a little concerned about it." 

In your proposed rule, are you willing to commit to balancing the 

burden in your final rule or are you folks in cement? We are getting the impression, I mean I talked to your boss, Mr. Babbitt, and 

others. I get the impression that come heck or high water you are 

just going to see it through for the reason of closing up a lot of 

ground. Now I hope that is wrong. 

Mr. LEsHY. This is not about closing up ground or opening up 

ground. This is about providing a fair process for testing and determining the validity of rights-of-way claims across Federal land. We 

are not locked in stone on the burden issue in particular. It is 

something, as I said, we are sensitive to. We want to create a process that works. 

With regard to the Burr Trail, if I may mention, the Burr Trail 

litigation is, in effect, the reason why an orderly process is necessary, and why rules are necessary, why a departmental administrative process is necessary--

Mr. HANSEN. I wouldn't disagree with that. I would agree with 

your statement. Where we are coming apart is we just hate to see 

these little communities that have a tax base of zilch now having 

another huge responsibility put on them because the BLM doesn't 

want to do the work themselves. That is what we are saying. Here 

the responsibility on these communities is awesome. 

Put yourself as a county commissioner in one of those little counties. Some of our little counties down there are owned by the Federal Government 80, 90 percent, and they can barely make it and 

yet people come in by the hundreds, trash their area. They have 

to put out the fires. They have to pick them up because they break 

their legs hiking and all that stuff. And here comes another big hit 

from the Federal Government. 

All we are saying is we would just like to see a little equity in 

this. Let me ask you, if we send you some suggestions to your rulemaking taken out of our bill, could we have a response to those? 

Mr. LESHY. Sure. Absolutely. As I said, we are genuinely interested in cooperating. 

Mr. HANSEN. I would just as soon not pass this bill. If the BLM 

would take a moderate position, I would just as soon not bring this 

bill forth. We have enough support to get it right to the President's 

desk right now but I don't really want to do that if you come up 

with some reasonable approach. 
10 

Mr. LESHY. We will be happy to look at any suggestions you have 

and respond to them. As I said, particularly on the burden issue, 

I think your interest, and the Department's interest in minimizing 

the burdens on local government, while making sure that valid 

rights-of-way are recognized and invalid rights-of-way are rejected, 

is the S'kme. 

Let me also mention, as we both know, we may run out of money 

to process the rulemaking, come October 1, for a year if the House 

and Senate appropriations proposals make it through. So you'd better send your responses or your comments down quickly so we can 

get to them before October 1. Otherwise, we will have to wait a 

year. 

Mr. HANSEN. Well, the difference between you and these little 

counties is, they can't go in debt. 

Mr. LESHY. Right, I guess. 

Mr. HANSEN. They have laws that say they can't do it. I remember when I was Speaker of the House, the attorney general of my 

State said to me, "If what you spend exceeds what you bring in you 

are personally liable." It has a real chilling effect on us in the legislature. Too bad that doesn't apply here. 

The gentleman from California, Mr. Radanovich. 

Mr. RADANOVICH. Just for a point of clarification, I don't know 

if the question needs to be asked of the gentleman testifying or by 

staff but how does this fit under the unfunded mandate rule? 

Clearly, this is an unfunded mandate on local agencies. If the cost 

of determining the validity of the rights-of-way are placed on county government, that is an unfunded mandate. 

Mr. HANSEN. If I may, if the gentleman yields, I think the gentleman has hit upon a good point and one that very likely that 

under Barbara Vuchanavich's thing that we are looking at right 

now that maybe this should come up. However, this regulation isn't 

here. As the gentleman from California is perfectly aware, it affects 

an awful lot of people in your State. 

Since 1866 up to 1976 it went along that the counties and the 

State pretty well established these roads. Then when the FLPMA 

Act was passed, the current Administration felt that it was necessary for them to determine certain regulations. The regulations 

that have been proposed, I think all 11 western States and Alaska 

vigorously opposed these regulations saying it would cause a complete undue burden on the counties and the State. 

That is the reason for the bill we have in front of us and why 

Mr. Leshy graciously is here today as are other people to discuss 

this. We feel that the burden would be so horrendous that it would 

in effect break the budget of half the counties in the west or else 

they would just roll over and accept it. And we are saying the regulation, this bill which we are pushing today, is one that puts the 

emphasis on the BLM and not on the State and counties. 

Mr. RADANOVICH. Right. I guess in a perfect world it would be 

nice to see a problem brought to our attention like this with a price 

tag attached so that it can be made an item within your own budget rather than the idea that you would call local government into 

question and assume that they are going to shoulder that responsibility. That is my statement. 
11 

Mr. LESHY. Mr. Chairman, if I could respond briefly. A couple of 

points: One is on the unfunded mandates issue. The context here 

is important to keep in mind and that is, number one, these are 

public lands we are talking about, Federal lands, military bases, 

national parks, etc. The issue here is Congress passed a statute 

well over a century ago that said State and local governments 

could acquire property interests in those lands under certain conditions. The question these regulations revolve around is, have the 

State and local governments satisfied the conditions to establish 

the property interest. 

The United States made an invitation, and the State and local 

governments can accept that invitation under certain conditions, 

and the issue is, have the conditions been satisfied. It is not an unfunded mandate in the sense that the United States is requiring 

them to take some action for the United States' own benefit. The 

United States is in effect requiring them to show that they have 

satisfied the terms of the statute under which they acquire, for 

free, valuable property rights and public lands. 

So I don't think there is, strictly speaking, an unfunded mandates problem with the regulations. Having said that, let me reemphasize that we are greatly sensitive to the burden that the proposed regulations might place on State and local governments in 

terms of the showing required. We don't want to argue, it is in nobody's interest to argue, about the easy cases where the rights-ofway are clear, and if we can find a method to ease some of the concerns of State and local governments, we are happy to do that. 

I do not think we have the opposition of all 11 western States 

on a proposed regulation. A number of States were either silent or 

generally submitted fairly supportive and constructive comments. I 

have met with a number of groups and State interests out there. 

The western State land commissioners, for example, had some very 

constructive ideas about the proposed regulations. 

Finally, let me also emphasize that the issue here does not concern solely public lands. Typically these rights-of-way can be established across public lands: but many of those public lands became 

private after the rights-of-way were established. The easier you 

make it to establish and confirm rights-of-way across public lands, 

the easier you are making it to also establish those same rightsof-way as they continue across private lands so there are really not 

only public property interests, but also private property interests at 

stake. 

The more a local government, let us say, can establish a rightof-way across a military base or a national park, well, those rightsof-way don't usually end at the boundaries of the Federal lands. 

They also cross lands that used to be Federal but are now private, 

and so every time you enlarge a right-of-way opportunity under 

R.S. 2477, you are usually enlarging the right-of-way that traverses 

adjacent private property interests as well, and that is a significant 

concern. 

Mr. HANSEN. Does the gentleman from California have further 

questions? Of course, the intent of our legislation is not to enlarge 

or add roads, it is to adjudicate the existing rights-of-way, and it 

is a right-of-way whether it is public ground or it is private ground, 

it is still an existing right-of-way. And so we don't want to get car-
12 

ried away on the idea we are trying to create new roads. That is 

the last thing in the world we want to do. 

What we want to do is adjudicate the roads that we have, and 

that is the criteria. The gentlelady from Idaho just walked in. We 

were just going to finish with our witness here who has been very 

kind and courteous to come up and spend time with us. I know it 

is probably not a comfortable thing to do but this is regarding R.S. 

2477 roads which are quite important to us. Catching you cold this 

way is totally unfair and I apologize, but would you like to ask Mr. 

Leshy any questions? He has been very gracious in responding to 

our questions. 

Ms. CHENOWETH. Thank you, Mr. Chairman. I do have some 

questions, and I apologize for the lateness of my arrival. I was 

caught up in another committee meeting. And I think Mr. Leshy 

would feel neglected if I didn't ask him questions, right? 

Mr. LESIN. Delighted. 

Mrs. CHENOWETH. I have received a letter that was sent by the 

Bureau of Land Management to a Mr. Doug Baker, in Nezperce, 

Idaho, who had some private land and permits and authorizations 

were offered and authorized under H.R. 2477 by the Bureau of 

Land Management and the Forest Service for other companies to 

use this particular road, but they were denied to Mr. Baker. 

In a letter sent July 20, 1995, the Bureau wrote, "If you cause 

any disturbance to roads on public land or use them for hauling 

timber without a proper authorization from this office, you will be 

in violation of the Federal Land Policy and Management Act and 

the Federal regulations at 43 C.F.R. Part 2800 and 9239. This letter will serve as official notification that if you are engaging in any 

of the above-mentioned activities, you must cease and desist immediately. If you have not begun such activity, do not engage in such 

actions. 

"Due to your prior knowledge of the right-of-way requirements of 

the BLM which is well-documented, your involvement in such activities will constitute an intentional trespass subjecting you to possible criminal penalties." Now I submit this to you because I think 

it is rather harsh, especially in view of the fact that others are 

using the road. 

I thank you for the communication that you have sent to me 

based on previous questions, Mr. Leshy, but I think we will agree 

that although R.S. 2477 was repealed in FLPMA, it meant repealed 

from the point of view that no new R.S. 2477 roads would be authorized under FLPMA. 

However, under FLPMA and under the Shultz decision, existing 

roads under R.S. 2477 prior to FLPMA were to be recognized. Now 

in view of that, can I have your specific attention to this particular 

issue because it is inconsistent with our previous communication 

together in these committee hearings? 

Mr. LESIN. Certainly. Congresswoman Chenoweth, I will be 

happy to look into that. I, of course, am not familiar with the specific situation. I am actually a little mystified if this is an R.S. 2477 

right-of-way. One of the longstanding policies of the Department, 

which we think is consistent with what Congress intended is that 

it be a public right-of-way. I mean, it is not for private use. If it 

is available for general public use, I don't frankly have any idea 
13 

what Mr. Baker is doing that would create the problem, but I am 

happy to look into it and to get back to you specifically on that. 

Mrs. CHENOWETH. I do want you to know this is a R.S. 2477 road 

that has been declared by the county commissioners. 

Mr. LESHY. If I could just speculate for a moment, sometimes the 

Federal land agencies have to close roads for fire danger reasons 

and that sort of thing. Conceivably, that might be involved here. 

Mrs. CHENOWETH. I can assure you that is not the case, and I 

appreciate your personal attention. The last time you testified before this committee, we did discuss R.S. 2477 and the decision before the Ninth Circuit Court of Appeals. Would you agree with me 

that the Ninth Circuit Court of Appeals decision still stands now 

on the Shultz decision? 

Mr. LESHY. No, it has been vacated. What happened in that case 

was the Ninth Circuit issued a ruling on an R.S. 2477 right-of-way 

in Alaska crossing a military base and the United States petitioned 

the court for a rehearing on that case and the court granted rehearing, vacated its earlier decision, and ordered new argument on 

the issue. The argument was held, I believe, last December. 

After the argument, the court ordered the parties, actually requested the parties, to try to mediate their disagreement, and the 

government and Mr. Shultz went into mediation for a period of several weeks or a few months. They were unsuccessful, and it is now 

back before the court so there is no outstanding court decision 

there. We are awaiting the court's decision on rehearing of its earlier decision. 

Mrs. CHENOWETH. But in normal cases wouldn't it be that the 

original decision would stand until the court decides otherwise? 

Mr. LESHY. I believe the process used here is the process often 

used. When they grant rehearing they vacate, which means they 

wipe out, their earlier decision and they will come out with a new 

decision which could reach the same result as the old decision or 

it may be different. We are just waiting to see. So there is really 

no decision outstanding in the Shultz case at this point. 

Mrs. CHENOWETH. Can I have your commitment that your department will abide by Idaho State law with respect to declaration 

of R.S. 2477 roads by county commissioners? Can I get your commitment that we can see that kind of cooperation with the agency? 

Mr. LESHY. We have long taken the position that is in the proposed regulations, that we follow State law to the extent that it is 

consistent with the terms that Congress laid dowri in 1866 in the 

statute itself. In other words, where Congress has made a judgment about an R.S. 2477 right-of-way, that controls over inconsistent State law, but where State law is not inconsistent, we will certainly abide by it. 

Mrs. CHENOWETH. See, the problem is that my constituents have 

been fighting the Department for years, and they have been forced 

to provide reams of documents and spent thousands of dollars, and 

often have to go to court to fight for access to their own property 

rights, and it is time that the Department, we think, be accountable to the existing law, and I thank you for any indication of cooperation you are willing to give us. Thank you. Thank you, Mr. 

Chairman. 
14 

Mr. HANSEN. Do you have any further questions? We are not put- ting any time limits on you today. Apparently not. Thank you, Mr. 

Leshy. It is very kind of you to come before the committee. I think 

you will probably find these next two panels very interesting if you 

are not terribly busy, but that is entirely up to you, sir. 

Mr. LESHY. Thank you very much for having me, Mr. Chairman. 

I am going to have to run to some meetings down at the Department but I am leaving a couple of very good people here to take 

good notes so I will hear about it. 

Mr. HANSEN. Well, Mr. Leshy, we are going to take you up on 

your offer and send you a number of things that we think would 

improve the regulation, and we would really appreciate a response. 

Mr. LESHY. Thank you very much. We would be happy to respond. 

Mr. HANSEN. Thank you. We appreciate your being here. Our 

next panel is Representative Beverly Masek for Alaska State President, Drue Pearce and Alaska State House Speaker, Gail Phillips, 

who she is representing at this time; and Louise Liston, Garfield 

County Commissioner from my home State of Utah; and Barbara 

Hjelle, Office of Special Counsel, Environmental & Public Lands 

Issue of Washington County. 

We appreciate you being here, Representative. It is a pleasure to 

see you, and we will now turn the time over to you. 

STATEMENT OF REPRESENTATIVE BEVERLY MASEK, FOR 

ALASKA STATE PRESIDENT, DRUE PEARCE AND ALASKA 

STATE HOUSE SPEAKER, GAIL PHILLIPS 

Ms. MASEK. Thank you very much, Mr. Chairman, and members 

of the subcommittee. Thank you for this opportunity to testify on 

potential legislation involving Revised Statute R.S. 2477 rights-ofway. For the record, my name is Beverly Masek, Alaska State Representative from Willow, Alaska. I am an Anathabaskan Indian, a 

member of the Angalic tribe. 

I will be testifying, presenting this joint testimony, on behalf of 

the Alaska State Senate and the House of Representatives. We 

have provided some written testimony which I request be entered 

into the record. I would also like to point out that we are commenting on discussion, draft legislation dated July 17, 1995. 

Mr. Chairman, I want to express the strong support of the Alaska legislature for Federal legislation recognizing the validity of 

rights-of-way granted under the previous revised statute R.S. 2477. 

Since Alaska joined the union in 1959 we have seen an extensive 

land and resource allocation process. Native claims were settled, 

huge areas of Federal lands were designated as national parks, refuge, forest and wilderness areas, and the State also selected its 

land entitlement. Through this patchwork quilt of landownership 

and designations, it is critical that we maintain corridors for a variety of uses including subsistence, resource development, utilities, 

transportation and recreation. You are being given some of the 

maps of Alaska which will illustrate this point very clearly. The 

trails and roads you see on the map have historically been used by 

Alaskans, some of them for over thousands of years. 

R.S. 24 77 designations are the clearest method for legally establishing and maintaining these access corridors. When Congress 
15 

passed ANILCA in 1980 it recognized the need for transportation 

corridors. The law created a process in Title 11 for establishing 

these corridors, but the agencies responsible for implementing Title 

11 created such a complex process that there has never been a 

major corridor established under Title 11 in Alaska. 

Although Congress clearly recognized the need for access 

throughout Alaska for a variety of purposes, we would have to say 

that Title 11 has not served as a replacement for R.S. 2477 nor was 

it ever intended to replace R.S. 24 77 designations. In Alaska the 

vast Federal holdings and Federal regulations of these lands have 

far-reaching implications of public access to lands owned by the 

State, native corporations and private individuals. 

The rights-of-way granted in Section 8 of the Mining Law of 

1866, commonly referred to as R.S. 2477 rights-of-way, were openended, self-executing grants by the Federal Government that were 

accepted or established by public use. No prior Federal application 

for such a right-of-way was required, and no notation appeared in 

the land office records. 

In effect, Mr. Chairman, the R.S. 2477 grant operates to convey 

a permanent right-of-way to the public across unreserved Federal 

lands. Federal court rulings and the Department of Interior regulations confirmed this interpretation. Also, these rulings and regulations have concluded that State law will govern the method of acceptance or establishment of an R.S. 2477 right-of-way and the 

boundary and scope of that right-of-way. 

In Alaska the State Supreme Court has adopted the procedures 

for accepting R.S. 2477 rights-of-way as follows: "Before a highway 

may be created, there must be either some positive act on the part 

of the appropriate public authorities of the State, clearly manifesting an intention to accept, or there must be public use for such a 

period of time and under such conditions as to prove that the grant 

has been accepted." 

Historic and traditional u.se rather than actual construction of 

the right-of-way is the focus of R.S. 2477 process in Alaska. It is 

also important to point out that the R.S. 2477 grants were intended 

to include any public passageway such as a path, wagon road, pack 

trail, street or alley, or any other common or customary transportation routes. In Alaska this includes foot, horse and sled dog 

trails. 

Although many of you may not be familiar with Alaska, I am 

sure you have heard of the Iditerod Trail sled dog race. Mr. Chairman, I have personally completed this 1,100 mile race four times 

as dog sled racer, and major portions of the Iditerod Trail are R.S. 

24 77 designations, and without them, we wouldn't even be able to 

run the Iditerod. Regulations recently proposed by the Department 

of Interior relating to R.S. 24 77 rights-of-way attempt to disable 

the grants already vested in Section 8 of the Mining Law of 1866. 

Interior's new interpretation of R.S. 2477 does not recognize the 

establishment of the right-of-way unless there has been an affirmative determination made by Interior or a Federal district court on 

the existence or scope of the claim. This attempt by the Department of Interior to alter established interpretations of R.S. 2477 

grants is unacceptable. Because of the importance of these changes 
16 

to Alaska, we are asking Congress to once again clarify its policy related to the granting of these rights-of-way. 

Mr. Chairman, you can see from these maps that Alaska has 

very few roads. As a result, many of our rural residents are dependent upon seasonal shipments by river barge or air transportation for the necessities of life and this makes the cost-of-living extremely expensive in these areas where there are very few economic opportunities. Transportation corridors can also be very important in the development of natural resources which can provide 

jobs for the people. 

I have traveled personally to over 140 rural villages speaking to 

the children on setting goals and drawing upon their inner 

strength to be successful. We know that building a private sector 

economy is critical to the survival of these villages, especially considering the reduction in the Federal and State spending money. 

Maintaining access to trails which have been used for hunting, 

fishing or trapping is also very important to preserving the subsistence lifestyle in rural Alaska. 

The truth is that our villages rely on a combination of subsistence and cash economy and many of our native people are very successful in both the modern and the historic world. The image of 

Alaska natives living entirely off the land is a romantic notation 

of people living in urban areas of America. Our people also need 

jobs. 

In conclusion, Mr. Chairman, and members of the subcommittee, 

the Alaska State Senate and the House of Representatives applaud 

your efforts to address the access issues related to the rights-of-way 

granted under R.S. 2477. We have offered some specific comments 

on the draft legislation which are attached as an appendix to our 

written testimony. I hope the maps we have provided for you demonstrate the current access problems we face in our State. 

This situation can only get worse if the limited administrative 

processes are further restricted or eliminated. Congressional clarification of the rights-of-way granted under R.S. 24 77 would be a 

giant step forward for the State of Alaska. Again, I want to thank 

you for addressing these important issues. Thank you very much. 

[The prepared statement of Beverly Masek can be found at the 

end of the hearing.] 

Mr. HANSEN. Thank you, Representative, for your excellent testimony and I have a letter here from the Governor of Alaska in support of H.R. 2081. Without objection, it will become part of the 

record and it is open for any member to look at if they would like 

to. 

Commissioner Louise Liston, we appreciate you being with us 

again and we will turn the time to you. 

STATEMENT OF LOUISE LISTON, GARFIELD COUNTY 

COMMISSIONER 

Ms. LISTON. Thank you, Mr. Chairman, members of the committee. I appreciate the opportunity to be here and appreciate you 

holding this hearing to recognize the validity of rights-of-way 

granted under Section R.S. 2477 of the revised statute. And my 

name is Louise Liston. I am a commissioner from Garfield County, 

Utah, the county which actually has been battling the Burr Trail 
17 

case for the past eight and a half years that I have been a commissioner, and costing the taxpayers of my State and county up-to-date 

well over a half million dollars and still going on. 

The Burr Trail continues to be a monstrous example of a system 

of management that is not working and I hope that I can point that 

out today. Over the past several years, R.S. 2477 rights-of-way issues have become increasingly important to counties and private 

property owners and increasingly burdensome to Federal ·agencies 

who manage the lands adjacent to those rights-of-way. 

Historical data dictates that those roads be treated as a public 

right but environmental groups have challenged that right in many 

cases and as a result agency policy and direction have that clarity 

and consistency. Disputes inevitably followed where procedures 

have not been clearly established or where actions are not in accordance with existing law. Let me give you some examples. 

During the initial Burr Trail review process, the BLM examined 

the entire allotment of the Burr Trail including a section called the 

Deer Creek section and appropriate changes were made. The Burr 

Trail alignment including Deer Creek was further reviewed as part 

of the legal proceedings associated with the project and plans presented in court were approved. When the county met with BLM officials at the time when construction was to be initiated, BLM representatives informed us that although the alignment created no 

undue and unnecessary degradation and was perfectly acceptable 

in their minds, individuals higher up in the Department had arbitrarily determined that the work could not go forward because it 

left an intervening, undisturbed area of less than one-tenth of an 

acre. 

Local representatives in the county agreed to initiate a legal proceeding in order to get a ruling from the court. It was anticipated 

that a ruling could be achieved in less than six months. The Justice 

Department in consultation with the BLM have prolonged court 

proceedings for nearly two years, and the matter is still unresolved 

although it is scheduled for a hearing tomorrow. This section of 

road has a total length of approximately 300 feet, is located on 

ground that was purchased by the BLM from the State of Utah, 

and is bordered on the north by a campground and on the south 

by a parking area the BLM has requested the county expand as 

part of their road efforts. 

Now another example is the gulch area and this has been a 

nightmare for the county. Similar to Deer Creek, the gulch alignment was reviewed by the BLM and further examined during court 

proceedings. The court directed the county to relocate the road on 

the bench approaching the gulch, and plans were drawn and approved as to the location of a concrete structure at the stream 

crossing. In addition, a Title V right-of-way was also issued for relocation of the road and the crossing. 

When Garfield County staked the alignment in accordance with 

court-approved plans, the BLM indicated that the location was unacceptable and requested that the county move the road to the 

north. The county complied with the BLM's request in an effort to 

cooperate and installed the structure at locations indicated by the 

BLM. Upon completion of the structure, local Federal land man-
18 

agers determined the structure was once again unacceptable and 

demanded that it be relocated north of its existing location. 

The structure was a pre-cast concrete box, which required the 

use of a crane costing the county $80,000 to move it, to relocate it, 

and also necessitated several additional sections of cast concrete 

box in order to accommodate the revised alignment. The county 

staked the new alignment, and as the contractor showed up on the 

job to relocate the structure, the BLM protested the second alignment and threatened the contractor with a cease and desist order. 

The county met with BLM officials the following day and was informed that regardless of stakes marking wilderness areas, regardless of a parking lot located adjacent to the road, and regardless 

of court-approved plans, the county would need to move the structure an additional ten feet north. The county complied with the 

BLM's demands, resulting in a total relocation from the original 

court-a ved alignment of more then 73 feet. 

The then issued a trespass against the county, including a 

statement that the county had relocated the road too far north. The 

conclusion of this project has still not taken place to date, but has 

resulted in significant time delays and additional costs to the county. And quite honestly, the BLM now denies that they ever asked 

us to relocate the concrete box saying that it was a county option, 

that they opted to relocate the box themselves and certainly we 

would do that costing about $200,000 in the process of opting to do 

that. 

In studying R.S. 24 77 history and the Congrese,donal Record related to pre-existing rights-of-way granted under the statute when 

FLPMA was enacted, I find it very clear that Congress understood 

the importance of R.S. 2477 rights-of-way and had no intention of 

limiting the scope of these rights. In fact, FLPMA explicitly says 

so, and yet that is exactly what counties are faced with at the 

present time in dealing with Federal agencies when maintaining or 

improvi ese roads. 

H.R. would give direction to Federal agencies regarding which rights-of-way to recognize and thereby enhance their own 

ability to better manage Federal lands without interfering with the 

county's obligation to provide safety for the traveling public. Policies which encourage the interference of providing that safety will 

eventually be challenged in court and bring further stress to limited budgets. 

If I might add, Mr. Leshy is saying that the Federal Government 

anticipates ending up in court in these cases. I wonder if the burden is placed on counties if they feel like those are not going to end 

up in court regardless because the counties are not going to be able 

to do this. They are going to take the cases to court too if R.S. 2477 

rights-of-way are taken away and the Federal Government will end 

up in court probably in many more instances than if they were 

through their own process. 

Please keer in mind that these roads provide access to Federal 

lands as wel as providing routes for Federal employees and local 

citizens to travel to work on. Maintaining and improving these 

roads to a safe standard benefits all ownership, whether it be private, Federal, State, county or other users. Under present management practices, it has become increasingly difficult to do that. Last 
19 

year Garfield County waited 15 months after the promise of two 

months for the Park Service to complete an environmental assessment on a portion of the county right-of-way that traversed Capital 

Reef National Park. 

We postponed planned improvements which were grading the 

road, which had become a channel in most places, and bar ditching 

the sides for better drainage to prevent flooding and washouts. We 

were told that if we went to work, we would likely be served with 

an injunction to stop us. Acting in good faith, Garfield County has 

tried for close to two years now to reach an agreement, even meeting here in Washington, DC, a few weeks ago with Assistant Interior Secretaries Frampton and Armstrong and several staff members and attorneys. It has cost the county a considerable amount 

of money, not mentioning the cost to the Park Service for the E.A. 

trips to see the road, etc. 

In light of all the talk of budget constraints and eliminating 

waste, I can't help but think what this bill could do to accomplish 

those very goals. It is a realistic approach to settling a very controversial issue versus an unrealistic approach set forth in the 

DOrs proposed regulations which would place serious financial 

burdens on counties and the Federal Government, forcing them to 

use their personnel and other resources in a wasteful and unnecessary manner. 

Quite honestly, I agree with the gentleman from California and 

many of the general public view this as yet another unfunded mandate. The National Association of Counties strongly opposes these 

proposed regulations and supports counties in their efforts to provide access to the public lands using R.S. 2477 corridors. 

Since many of Utah's R.S. 2477 roads are State highways, I have 

also attached to my statement a resolution passed during the 1995 

session of the State legislature and endorsed by the Governor 

which strongly urges the United States Department of Interior to 

withdraw the proposed regulations concerning R.S. 24 77 rights-ofway and urging the United States Congress to recognize the authority of the State of Utah to administer rights-of-way across Federal public lands in Utah, and take action to ensure that administrative agencies of the United States take no action which would 

infringe upon this sovereign authority. 

Also, a more detailed account of the Capitol Reef National Park 

issue is attached. Mr. Chairman and members of the committee, I 

feel the survival of Utah's rural counties and communities and 

other counties and communities throughout the west which rely 

upon access across the use of the Nation's public land is once again 

being threatened by Federal policy and regulations. This bill would 

bring balance and common sense back into the management of 

those vital corridors which not only benefit all owners and users, 

but serve as a tool to better manage the public lands which they 

access. 

And a thought came to mind that I would like to close with, and 

that is that 150 years ago our ancestors in Utah sacrificed and 

struggled to open up that land by using these very roads and now 

we are having a sacrifice and struggle to keep those lands open to 

those who want to close them. It seems rather ironic. Thank you. 
20 

[The prepared statement of Louise Liston can be found at the 

end of the hearing.] 

Mr. HANSEN. Thank you, Commissioner. Barbara Hjelle, we will 

turn to you now. 

STATEMENT OF BARBARA HJELLE~ OFFICE OF SPECIAL COUNSEL, ENVIRONMENTAL & PUBLIC LANDS ISSUES, WASHINGTON COUNTY, UTAH 

Ms. HJELLE. Thank you, Mr. Chairman, and members of the subcommittee for this opportunity to speak to you today. I have submitted written comments as well and I would request that they be 

incorporated into the record. 

Mr. HANSEN. Without objection all of the written statements will 

be incorporated into the record. 

Ms. HJELLE. Thank you. We have heard a lot of discussion about 

R.S. 2477 rights-of-way so far today. I have disclosed a little bit in 

my written comments my experience with them, which in large 

part has been representing Garfield County with regard to the 

Burr Trail. Louise has eloquently described just some of the im~ 

pacts on one road in one county of the current adverse policieE of 

the Department of Interior. 

These rights-of-way were granted to the American public by Congress in 1866 and they have been in existence for decades, at the 

latest, as Mr. Leshy indicated, since 1976 and in many cases in excess of 100 years. In Utah they are there quite often by use. They 

are there because they were used and they were used because they 

were necessary and that is what Utah law told Utahns to do. They 

said you can establish public highways in Utah by use alone. 

So these rights-of-way and various routes have been established 

and have become now an accepted part of the transportation infrastructure in rural Utah and in Utah as a whole. These rights-ofway range all the way from paved State highways, paved county 

roads, highly developed gravel roads, all the way down to foot 

paths and horse trails, as the law provided for. And when you get 

to the lower level of construction or use, lower being, for example, 

paths and trails and lower constructed roads, these are often primarily by use and that use is all the more important as a consideration. They are there because they were needed. - Like the Burr Trail, many of these rights-of-way were built by 

the sweat and the blood of Utah's pioneers. There was eloquent testimony in the litigation on that point on how much work it took 

to open that road and make it accessible to the public that is now 

using it today. The recent hostility toward these R.S. 24 77 rightsof-way has created tremendous problems and in hearing some of 

the earlier testimony I can't help but comment that what I am 

hearing is, "Gee, you know, Congress did this in 1866 but in 1976 

we have new policies and we sure think the new policies ought to 

apply". 

Well, maybe people ought to be thrown off their homesteads too, 

you know, when there are new policies, but you can't just go back 

and change the law. These rights-of-way have been granted and 

they are there. But, at any rate, it is easier to fight a highway 

rights-of-way than it is other vested property rights because they 

do traverse public lands that are still owned by the Federal Gov-
21 

ernment today but the refusal to recognize the existence of these 

rights-of-way is creating tremendous burdens. 

The proposed regulations which have been discussed already by 

others today would rewrite the law of R.S. 2477. It would create 

new law out of whole cloth and this bill does not do that, as I understand it. It reaffirms existing law. It does not create new rightsof-way, it does not provide new inroads for excessive actions. Only 

if you assume-as I believe Mr. Chairman suggested-why would 

we assume that counties and local governments and others would 

make bad faith claims or assertions of existing rights-of-way? Furthermore, if they do exist, they will be shown and if they don't 

exist, they will drop out. These are pre-existing rights. They are 

not new things that are being created. 

So I think this legislation stands firm for standing with the law 

as it stood, as the people understood it, as they accepted and operated under, for 110 years. And I would also like to point out most 

specifically that it is consistent with regulations of the Department 

of Interior in effect since 1938, and let me, if I could, just quote 

those. 

"The grant referred to in the preceding section, R.S. 2477, becomes effective upon the construction or establishment of highways 

in accordance with the State laws over public lands not reserved 

for public uses. No application should be filed under said R.S. 2477 

as no action on the part of the Federal Government is necessary." 

Those regulations went into effect in 1938 and remained in effect 

in substantially that form until the repeal of R.S. 2477. So when 

the Department of Interior comes before you and comes before the 

American public and says State law should not apply, I would like 

to know what they think of the regulations that they have had in 

effect for decades on this point that said exactly that State law 

does apply, that the American public relied upon. 

I have also attached to my comments some just very selected 

quotes from settled precedent and other departmental actions, 

court decisions, and so forth, and I really think that is elucidating 

the substantial weight in support of what your legislation would do 

in maintaining existing law. 

I don't believe that the alarmist allegations of what this legislation would do have any merit. There could be errors made in any 

instance. I think reasonable people can sort those things out. They 

do not need to become the basis to change the law of the land and 

rewrite what Congress did in 1866. 

I think that what you are doing here is allowing State and local 

governments to do the job that they have been designated to do in 

our system of government, to manage the local transportation infrastructure. That should not be taken over by the Federal Government, as Louise Liston has shown you is being done to great detriment to everyone. So I certainly support this legislation and hope 

that you are successful one way or another in ensuring that the attempt to undo decades of established precedent is not successful. 

Thank you. 

[The prepared statement of Barbara Hjelle can be found at the 

end of the hearing.] 

Mr. HANSEN. Thank you very much for your testimony. The 

gentlelady from Idaho. 
22 

Mrs. CHENOWETH. Thank you, Mr. Chairman. I mentioned to Mr. 

Leshy when he was here about the Shultz case but I do want to 

say that I have pulled the Shultz case out of my file and the Shultz 

case relied on Supreme Court cases dating back to 1943 that state 

whether a right-of-way has been established as a question of State 

law which has been established in our testimony today. 

A decision out of the Supreme Court states that a condition of 

the highway, whether paved and wagon worthy, or simply a minor 

foot path is irrelevant if the claimant can show that the right of 

way was used no matter for what purpose. It refers to Ball and 

Dillingham and those cases. There is a whole body of case law that 

establishes that the Federal Government created a law, R.S. 2477, 

before the turn of the century and to me, I might just be very simple but to me R.S. 2477 stands as sure as the sun exists. 

Now what we don't need now is a process by which the Federal 

Government can get its foot in to the system, require a period of 

time to allow the Secretary to have veto power, a period of two 

years for him to prove up his process. That is almost like saying 

the Federal Government has a right to declare whether the sun exists and if it does exist when you may or may not pull the shades 

in your house to see the sun. R.S. 2477 exists. It opened up the 

west for us. 

There was a purpose for that and I see no need to have additional processes. Mr. Chairman, what I see is a need for us to require an agency to abide by the existing law that is so simple and 

has been upheld by the United States Supreme Court and various 

other Federal district courts time and time again. I would like to 

ask Representative Masek, in the letter that was submitted by the 

Governor, was that known to the legislature and was that approved by the legislature? 

Ms. MASEK. The Governor sent this letter on his own. 

Mrs. CHENOWETH. I must commend all three of you for your very 

well-constructed testimony. Ms. Liston, it is such a privilege to 

hear from you again, and I have studied your testimony and will 

continue to study it. But, again, I do want to say I appreciate the 

good work that has gone into this bill but I cannot be satisfied with 

this bill unless we see notices or a provision by the State or the 

county or individuals to be able to bring an action for frivolous lawsuits against the Federal Government for not allowing them access 

through one legal action or another to the roads that we have said 

time and time again they have been allowed to use. 

I hope that as we work through this that is the direction that 

we can work and, Mr. Chairman, I thank you for taking on this 

huge issue because in your State and my State and all over the 

west, it is a big issue. I do tend to think that rather than more legislation, we need to get an agency that has been acting as an 

outlier in control. Thank you, Mr. Chairman. 

Mr. HANSEN. Thank you. I appreciate the gentlelady's comments. 

The gentleman from Oregon, Mr. Cooley. 

Mr. CooLEY. I want to thank the panel. I want to ask for your 

forgiveness for not being here earlier but I got stuck in another 

meeting. I too want to say that I am very happy that our Chairman 

is in that position because I guarantee if he was not, we would not 

have this legislation. I think we really truly need it. I think that 
23 

this is another "more Federal control, less State's rights." We can 

always talk about the war in the west. It is obviously that. 

We will have people here today testifying and in the future probably talking about public use. We have a very difficult philosophy, 

I think, coming down in this country. We have heard a lot of people 

on the other side talking about private property rights, State's 

rights, an Anglo-Saxon theory that is well outdated. I think we 

have all heard that in different forms. I think that our Chairman 

is starting to try to address that. I hope we have others doing the 

same thing on the issues. . To reinforce my colleague here on my right, Mrs. Chenoweth, I 

think that R.S. 2477 is obvious in what it says. I think we have 

another interpretation by an agency that is absolutely writing their 

own law to do whatever they well please and appreciate you people 

coming forward and testifying in this way. I think for the record 

it shows exactly what they are doing. You are at the ground level. 

You feel the pain and the persecution by these agencies and I think 

the American public needs to know and that is why we are doing 

this. 

So I want to thank you for being here and I want to thank the 

Chairman again. I am unbelievably happy that he is sitting in that 

chair and someone else is not sitting in that chair because we 

would not have this legislation, so thank you very much for spending your time here. 

Mr. HANSEN. I appreciate the gentleman's comments. It is amazing to me that this issue was really brought up by local government like the representative from Alaska, county commissioners, 

and others. Almost to a person the governors of the 11 western 

States and Alaska support this change that we are trying to bring 

about. I can stand corrected but I see the representative from Alaska is representing the Speaker of the House and the President of 

the Senate. They support it. 

I don't know of a president and a speaker-! haven't heard from 

California. I was worried about California. We haven't heard from 

California yet but almost to a person, they support the change in 

this. So this is a piece of legislation that has really emanated from 

local government. 

Representative, I was very interested in your comment about dog 

sled trails. I guess that would be R.S. 2477 roads, is that right? 

Ms. MASEK. Yes, that is correct. 

Mr. HANSEN. In the West, we always envision a road of some 

kind and I know we have a lot of two-track roads we shouldn't 

have. I don't argue with that. R.S. 2477, we have got an awful lot 

of roads that are maintained. We call them class C, class B roads. 

I remember when I was in the State legislature we put a lot of 

money in those roads. The litigation of this thing just blows your 

mind when you think about the pending problems that could come 

about under these regulations. 

I am really amazed that the current Administration would draw 

legislation that is so in conflict with the wishes and desires of the 

people who live on the land. Barbara Hjelle, you sat there during 

Mr. Leshy's presentation and the questions that I asked him. I 

surely didn't mean to be discourteous to him and I hope no one 

took it that way. He is a fine gentleman. We just have a different 
24 

point of view on the thing. But because I consider you one of the 

foremost legal experts on this issue, I would like to ask your response to his testimony, if I may. 

Ms. HJELLE. Thank you, Mr. Chairman. He made a number of 

points, obviously. One of the significant points that he made is on 

the issue of the burden and I think you have really brought out the 

problems with that. The Department of Interior disclosed to the Office of Management and Budget some estimates of the burden on 

local governments for complying with these regulations that were 

nothing .short of absurd. I think they would have allowed something on the order of minutes per right-of-way in Utah counties to 

accomplish all of the documentation that the agency lists in its regulation as required to prove a right-of-way. 

When you talk about these burdens and you talk about unfunded 

mandates, I would like to point out that when he says that this is 

not an unfunded mandate because you are only going back to what 

is already there, what was there in the past did not include a requirement of documentation, so that by imposing a documentation 

requirement you are imposing an unfunded mandate. If, in order 

to have your right-of-way recognized by the servient landowner, 

you must have documentation, this is an additional requirement 

that must be met. It is an unfunded mandate. 

The burden is substantial and I think it is ironic that you now 

have people coming before you saying you can't place this burden 

on the Federal Government, it is too heavy; who were very ready 

and willing to place this burden on local governments when they 

were the ones in these regulations that I quoted to you that set up 

the program that said you don't have to have any documentation. 

This wasn't the choice of local governments. This was the choice of 

the Federal Government to not require preparation of documentation. 

Another interesting aspect of that is this question of State law 

which has received so much discussion and I again quoted you the 

regulation that says that State law has been the policy, not just 

this new notion that where the statute says the right-of-way "for" 

construction has been granted we are now going to interpret that 

to mean the right-of-way is granted upon construction. This has 

never been heard before this Administration. 

But aside from that, just the general notion that State law is the 

basis upon which the Federal grant is interpreted, this is consistent with fundamental principles of common law and other fundamental legal principles and that is why the courts or whoever 

have addressed the question arrived at that conclusion, that you 

look to the law of the State to determine whether a highway was 

perfected under R.S. 2477. 

But if you change that definition from a State law definition to 

something new now being created by the Department of Interior, 

that is an unfunded mandate. Not only is it an unfunded mandate, 

it is one that cannot be met. You can't go back to prior to 1976 and 

do something to perfect your right-of-way. So if now the Department of Interior or Congress or anyone else comes up and says, 

"Well, in order to have an R.S. 2477 right-of-way you didn't have 

to comply with State law, you had to comply with these require-
25 

ments over here, none of which we disclosed to you before", you 

can't do it. It can't be done. 

So it goes beyond unfunded mandates. I have asserted that it 

really operates as a taking without due process as it was proposed 

by the Department of Interior. And in that regard, if you would 

allow me, Mr. Chairman, I would just like to refer you to my attachment on settled precedent, so that it doesn't look like me representing a rural county in Utah with bias has this attitude alone. 

Let us look at what the Tenth Circuit Court said about Federal 

definitions versus State definitions. 

I am quoting, "The adoption of a Federal definition of R.S. 24 77 

roads would have very little practical value to BLM. State law has 

defined R.S. 2477 grants since the statute's inception. A new Federal standard would necessitate the remeasurement and 

redemarcation of thousands of R.S. 2477 rights-of-way across the 

country, an administrative dust storm that would choke BLM's 

ability to manage the lands." 

I won't finish the quote but it goes on from there and I believe 

this is true. And when you talk about impacts on private property, 

the State laws that we are asking the Federal Government to continue to honor as it did until 1976 and really until now, are the 

laws that determine what access rights there are across private 

property. It is by the creation of a new Federal standard that you 

wreak havoc. That is what the Tenth Circuit Court was stating. 

So that when Mr. Leshy comes before you and says, "Gosh, we 

have to protect these private property people from these expansive 

claims", there is no merit in that position. I do not believe that 

there can be any new and frivolous claims arising out of the proposed legislation. I don't read it to allow State laws to enact new 

versions any more than I think the Federal Government ought to 

be able to enact new versions. We are talking about State laws in 

existence, as I understand it, up until the repeal of R.S. 2477. Everybody ought to abide by the rules when the game was being 

played. 

I certainly think it is interesting in Mr. Leshy's comments about 

the quiet title concern, because he told you the last time he was 

here before you that the proposed regulations, as I understood him, 

do not in any way intend to supersede the rights of holders of R.S. 

2477 to go to the court under the Quiet Title Act. That stands 

alone, so the fact that this legislation merely honors that right 

changes nothing. 

However, I was surprised when he said it last time because I had 

been in court against the Department of Interior where they have 

come forward and said not only can you not quiet title to your 

rights-of-way because we have an administrative procedure, but 

you can't quiet title to your rights-of-way because we have a draft 

administrative procedure, and you can't do anything till we get 

done. And so I was kind of surprised when he said he didn't think 

his regulations did that. 

And then I was doubly surprised to hear him say now that he 

thinks it is shocking that you are proposing to honor the provisions 

of the Quiet Title Act because that seems to contradict what I understood him to have said before, so I guess I am confused on that 

point at best. 
26 

I would like to point out that again your bill, as I read it, has 

explicit language in it that the Department of Interior will be 

bound by its own prior regulations. It is interesting to me that they 

are so opposed to the bilL I mean in essence they are saying, "Well, 

we don't want to be bound by what we have done before". 

There are so many other comments I could make on this-another comment I have is that he seems to be expressing concern 

that your bill would allow lots of different people to file notices of 

R.S. 2477 rights-of-way. As I read the Department of Interior proposed regulations, they don't limit who can go through their process either, so I am not sure why it is such a problem in your bill 

if it wasn't a problem in their regulations. 

I don't think I have to repeat over and over again that I don't 

think it would legitimize frivolous claims, because I think it is saying, "Abide by the law". 

I don't want to belabor that point too much, but these are not 

traditional administrative actions. When you suggest to Mr. Leshy 

can't we sit down and work this out, I think that is such an admirable suggestion-but when you have a Department of Interior 

coming forward and a Federal Government who in my opinion is 

really a co-equal party in this situation, you have property rights 

here and you have property rights here. 

Why should it be that the local governments who are the traditional parties charged with taking care of these transportation issues and rights-of-way are now going to be required to be totally 

deferential to the owner of the servient estate? These are property 

questions. They are questions of law. The facts and the law are already there, so to treat this as an administrative process removes 

local government from its legitimate role as property holders. I 

think that should be a matter of concern. 

I also would comment that I believe the Department of Interior 

did ignore the interests and concerns of local governments in drafting these regulations. I was personally involved in communicating 

some of those concerns. None of them are evident in any way in 

the regulations that were proposed in draft form. So when Mr. 

Leshy says, ''Well, we haven't finalized them so you can't tell 

whether or not we were responsive to the comments of local government", we were involved in the scoping process and we tried 

very hard to communicate these very same concerns and there is 

no evidence that they received any significant consideration. 

I think your legislation is necessary so long as the kinds of policies stated by Mr. Leshy are the policies of the Department of Interior or unless they are willing to sit down with you as you suggested and start from an open book, respecting the law of the land 

as it was for many decades. Thank you. 

Mr. HANSEN. Thank you. We appreciate your response. And, 

Commissioner, I can't believe your horror stories even though I 

know they are true. It amazes me that the Federal Government 

could create so many problems. We appreciate the panel and your 

great input and thank you for coming the long distances that you 

have to be with us. We are very grateful for it. 

Our next panel is Libby Fayad, Staff Counsel, National Parks 

and Conservation Association; and Mr. Scott Groene, Staff Attorney, Southern Utah Wilderness Alliance. Ms. Fayad, we will take 
27 

you first and we are not running the clock on you today. It is kind 

of a short hearing. 

STATEMENT OF LIBBY FAYAD, STAFF COUNCIL, NATIONAL 

PARKS AND CONSERVATION ASSOCIATION 

Ms. F AYAD. I hardly know how to respond. I have never not had 

a time limit so I have limited my remarks substantially. 

Mr. HANSEN. Go ahead. 

Ms. F AYAD. I would like to submit my testimony for the record 

and summarize it now. 

Mr. HANSEN. Excuse me, if I may. Do we have your testimony? 

Oh, excuse me, OK, I guess we do have your testimony. I am sorry, 

go ahead. 

Ms. FAYAD. Mr. Chairman and members ofthe subcommittee, my 

name is Libby Fayad and I am Counsel for the National Parks and 

Conservation Association. NPCA is America's only private nonprofit citizen organization dedicated solely to protecting, preserving, ~nd enhancing the U.S. National Park System. NPCA has had 

a longstanding interest in R.S. 2477, and I welcome the opportunity to appear before you today. 

NPCA strongly opposes H.R. 2081. The title of the bill, the Revised Statutes R.S. 2477 Rights-of-Way Settlement Act implies that 

this bill merely facilitates the settlement of existing claims and 

rights. However, it is our reading of the bill that it greatly expands 

the rights that were available under the 1866 law that established 

R.S. 2477. 

NPCA recognizes that valid rights were granted under R.S. 2477, 

but we also believe that certain standards of proof should be required before giving away valuable taxpayer property and damaging national parks and wilderness areas. Mr. Chairman, on the day 

that the Korean War Memorial is being dedicated, on the day that 

veterans are here in town, I am struck by the fact that veterans 

have to supply much more information than a person who could 

use an R.S. 2477 right-of-way before they can receive their benefits. 

Social Security applicants for disability have to supply much 

more information than would be required under your bill. I mean 

it is like if there is a benefit to be received here from the Federal 

Government, it is highly unusual except in a criminal case where 

of course there is no benefit to be received but where the government has to bear the substantial burden that your bill would require. The applicant has to make merely minimal showing and 

then the entire process is skewed toward granting the right-of-way. 

The Secretary has two years in which to object and then if the 

Secretary doesn't object, the right is deemed valid. If the Secretary 

does object, then the Secretary has to file quiet title or else the 

right is deemed valid. I can think of no other situation where the 

Federal Government is involved in individuals as your bill would 

allow individuals to apply for R.S. 24 77 rights-of-way as well as 

counties and States can receive such a substantial benefit, a rightof-way that could extend hundreds of miles without having to bear 

any of the burden. 

We are also concerned that the bill seeks to limit public involvement substantially. These are public lands. As the last witness 

pointed out, I mean there are rights on both sides and I would 
28 

agree with that but there are certain rights on the side of the public as well as on rights of the holders of the rights-of-way and this 

bill would totally preclude any public involvement in the process by 

limiting standing and also by exempting the entire process associated with the bill from the NEPA requirements. 

I would like to point out just one of the concerns NPCA has and 

why we feel strongly that the administrative process should be allowed to proceed although I am sure that the comments that have 

been received will be factored into the final rulemaking. I would 

just like to point out the implications for this bill in Alaska. The 

State of Alaska contends its asserted R.S. 2477 claims for 1,700 

roads and trails based on an atlas of trails, a map of trails. This 

atlas includes 200 claims in 13 or 15 national park units located 

in Alaska. 

Some of these trails are hundreds of miles long and bisect the 

park. Now one issue that seems to have been avoided by all the 

panels and it is a very complicated issue, I would be the first to 

admit that, is this idea of what is the scope of the right-of-way and 

who determines that. I mean if it were a dog sled trail and if dog 

sled trails are allowed to be R.S. 2477 rights-of-way, do you have 

a dog sled trail at the end of the process or do you have I-66? I 

mean these are real concerns and I think the bill does not address 

these and we would feel that it is more appropriate that these situations be ironed out in the administrative process. 

Thank you for letting me testify today and I will be happy to answer any questions you have. 

[The prepared statement of Libby Fayad can be found at the end 

of the hearing.] 

Mr. HANSEN. Well, thank you. We appreciate you being with us. 

Mr. Groene. 

STATEMENT OF SCOTT GROENE, STAFF ATTORNEY, 

SOUTHERN UTAH WILDERNESS ALLIANCE 

Mr. GROENE. Mr. Chairman, members of the subcommittee, my 

name is Scott Groene. I am an attorney with the Southern Utah 

Wilderness Alliance in Cedar City, Utah. I am here today to testify 

for both SUWA and the Sierra Club. I request that photographs 

that have been attached to my testimony be made part of the 

record along with a letter from the Utah Wilderness Coalition 

which identifies their locations. 

The photographs show asserted R.S. 2477 claims which have 

been made in Utah as they look on the ground and the Utah Citizens Wilderness Proposal which has been embodied by Congressman Hinchey in H.R. 1500. Some of the photographs also show 

claims that have been made within Congressman Hansen's bill 

H.R. 17 45. If you take a look at the photographs, what you will see 

is these are not routes that are being used for access. In some 

cases, these were routes that were made to mining claims that 

have been abandoned, long since eroded away. 

In some of these photos you will see there never was a road in 

these places and that these are the types of claims that would be 

legitimized by H.R. 2081. H.R. 2081 in essence allows anyone with 

a 32-cent stamp to force the United States into an expensive court 

battle. Section 2(a) of the bill allows anyone with an undefined in-
29 

terest in land to file an easement claim against the United States. 

The bill does not require them to show they ever used the rightof-way, only that they could. 

Pursuant to Section 2(a) of the bill, those who seek to interfere 

with public land management need do little more than scribble a 

line across a map. Section 2081 also opens the door for nuisance 

claims for decades to come, for the bill overrides the existing statute of limitations to allow R.S. 2477 issues to fester on for some 

two more decades, some 40 years after legislation was repealed. Because the existing Statute of Limitations is revoked and because 

the burden of proof is shifted by this bill to the Federal Government, the United States will be in the position of having to prove 

40-year-old facts to protect the public's interest. 

In another rollback of established law, the United States loses 

property rights to public lands by default if it is not able to address 

all the claims filed against it. The United States will bear enormous costs defending against these claims. The Department of Interior has suggested or estimated it is $1,000 to $5,000 per claim 

for administrative adjudications. There are 5,000 claims pending in 

Utah. That number will no doubt grow as people learn they can file 

multiple claims with little effort in the same areas. 

In this bill we will not be talking about administrative adjudications but the Federal Government will have to file litigation 

against each and every claim. Although these were grants from the 

United States, H.R. 2081 allows State law to control both the scope 

and grant of these easements over public lands although the original R.S. 2477 legislation made no mention of State control. 

If State law controls in States such as Alaska and Utah, Federal 

land management will be made impossible. This bill prohibits most 

Americans from challenging Federal agency decisions. H.R. 2081 

limits standing to those who claim rights-of-way. Those who are 

harmed by the approval of frivolous claims by the U.S. Government 

will not be able to challenge those decisions. 

The bill exempts these decisions from the National Environmental Policy Act. Provision 5(e) of this bill prohibits the Park 

Service, the Forest Service and the BLM from closing asserted 

rights-of-way for one year after notice is given to the State government. In other words, a dirt biker could file a right-of-way claim 

and then proceed unimpeded to trout streams across archaeological 

sites, national parks and wilderness areas, and the Federal Government would not be able to stop him for one year. 

H.R. 2081 ignores the legislative history of the Federal Land Policy and Management Act which makes clear that Congress limited 

the grandfathered R.S. 24 77 rights-of-way to existing mechanically 

constructed roads. Nor does the bill address R.S. 2477 claims 

against private property. Under this bill private landowners may 

not be able to defend their property against such claims even when 

they purchased their property decades ago. 

This proposed legislation has little to do with preserving access 

on existing roads. Rather, it ensures that claims of nonexistent 

roads will be permitted to damage national parks, wildlife, wilderness and our streams. Thank you for your time. 

[The prepared statement of Scott Groene can be found at the end 

of the hearing.] 
30 

Mr. HANSEN. Thank you, Mr. Groene. The gentlelady from Idaho. 

Mrs. CHENOWETH. Mr. Groene, in your opinion, when did the 

right to establish an R.S. 2477 right-of-way terminate? 

Mr. GROENE. Well, if it is a valid existing right, it was of course 

grandfathered by FLPMA in 1976 but it would have to be established as of 1976. 

Mrs. CHENOWETH. Can you tell me, can you cite for me, in 

FLPMA where it said that it had to be a mechanized, constructed 

road as you stated in your testimony? 

Mr. GROENE. Sure. In that bill Congress did two things. It grandfathered the R.S. 2477 rights-of-way, at the same time it established the 603 wilderness study area process. It told the Bureau of 

Land Management to go out and look for roadless areas which according to theMrs. CHENOWETH. I don't think you understand my question. 

Mr. GROENE. No, I do. 

Mrs. CHENOWETH. Let me restate my question. My question was 

could you cite for me in FLPMA where it states that roads had to 

be constructed with mechanical equipment? 

Mr. GROENE. What I have said is that the legislative history 

shows that because the legislative history showed that, DON was 

to go out and look for roadless areas under 603. Those were to be 

mechanically constructed. At the same time, Congress in the same 

legislation grandfathered--

Mrs. CHENOWETH. Under 603, I don't mean to be rude, but under 

603 of FLPMA, Section 603, that is the section where it asks them 

to go out and establish areas that may have wilderness characteristics, right? 

Mr. GROENE. Well, I need a couple more sentences to tie this together. Because Congress on the one hand said these are roadless 

areas, there are no mechanically constructed roads, on the other 

hand they said R.S. 24 77 rights-of-way are granted and they are 

grandfathered. Now precepts of understanding legislative history 

tells us that we give Congress credit to know what it was doing 

and to act consistently and that it wouldn't on the one hand establish valid existing rights that conflict with the wilderness study 

area process. 

Mrs. CHENOWETH. You haven't answered my question, sir, but I 

think you have answered it in the way that you prefer to. I will 

submit for the record there is no place in FLPMA that it requires 

that R.S. 2477 roads that have been grandfathered in had to be 

constructed with mechanical equipment. Now the BLM wilderness 

inventory process, that was initiated in 1976, right? 

Mr. GROENE. Yes, ma'am. 

Mrs. CHENOWETH. Now I want to divert just a little bit from the 

R.S. 2477. I don't remember hearing testimony from you and since 

you are from Utah, I don't remember hearing testimony from you 

on the Utah wilderness area. Do you have an opinion on that? 

Mr. GROENE. I have a very strong opinion, Representative. 

Mrs. CHENOWETH. Do you think that we ought to include more 

areas in that proposed legislation? 

Mr. GROENE. Which legislation? 

Mrs. CHENOWETH. The Utah Wilderness legislation. 

Mr. GROENE. Well, I am satisfied with H.R. 1500. 
31 

Mrs. CHENOWETH. AI; proposed by this committee? 

Mr. GROENE. No, as proposed by Maurice Hinchey. I have a disagreement with Congressman Hansen's bill H.R. 1745. 

Mrs. CHENOWETH. Do you think that we ought to be able to take 

in more area even if it included personal property rights that had 

been constructed by other people such as ranchers or other interests? 

Mr. GROENE. I have a feeling we might disagree over what are 

personal property rights but of course the bill would be subject to 

existing rights, yes. 

Mrs. CHENOWETH. Would a personal property right be an abode 

or a water reservoir or a pipeline? 

Mr. GROENE. Well, it would depend on who constructed it and 

under what circumstances. 

Mrs. CHENOWETH. Thank you very much. 

Mr. HANSEN. The gentleman from Oregon, Mr. Cooley. 

Mr. COOLEY. Ms. Fayad, I thought it was very interesting, your 

discussion about public lands and rights-of-way and parks and different public interest areas. Do you believe that R.S. 2477 rightsof-way that were predetermined by the National Park System are 

valid? 

Ms. FAYAD. R.S. 2477 rights-of-way that were valid before a unit 

was established as a national park would be valid, yes. 

Mr. COOLEY. So if we had a road running through an area before 

the park was designated, you would not object to that rule being 

used today for ingress and regress by the public? 

Ms. F AYAD. I didn't hear the end of your question, I am sorry. 

Use for what? 

Mr. COOLEY. For ingress and regress by the general public. 

Ms. FAYAD. No. 

Mr. CooLEY. So that is a valid--

Ms. FAYAD. That is valid. I would suggest, sir, that there is the 

right of the Secretary to manage the road appropriately and that 

the road could not be expanded beyond what it was when it became 

a valid existing R.S. 2477 right-of-way. 

Mr. COOLEY. Well, doesn't the present legislation or law R.S. 

24 77 state that same statement that you cannot expand it, that the 

Secretary must maintain the road in its present condition? Isn't 

that in there? 

Ms. FAYAD. In the current proposal? 

Mr. CooLEY. No, in the R.S. 2477. 

Ms. FAYAD. Well, no, R.S. 2477 just says the right-of-way for construction of highways over public land is not reserved for public 

uses and is hereby granted. It doesn't talk about management authority and certainly not management authority that was enacted 

after 1866. 

Mr. CoOLEY. I think that the Secretary, at least this Secretary 

for sure, has made his own determination on that statement because we are having, as you heard by previous testimony, problems 

on ingress and regress over national parks, etc., that many groups 

feel should not be honored. 

Ms. FAYAD. We recognize that there are such things as valid R.S. 

2477 rights--
32 

Mr. COOLEY. Excuse me, the question is valid, that is the determination. That is where we have a discrepancy in your opinion and 

others is, what is valid and what is not valid. 

Ms. F AYAD. Right. 

Mr. COOLEY. OK. Scott, I think it is wonderful, your statement 

about 32 cents can change the whole objectionary period because 

we on the other side have talked about your 32 cents that has literally shut us down in the West, at least after the last 20 years. 

And I am certainly happy to see that maybe we can turn this 

around and burn you a little bit on your backside. I think it is wonderful. 

I have a real problem with your public interest definition. The 

Secretary right now has a right of waiver on NEPA reports on R.S. 

24 77 designations and all that area. I understand in your written 

testimony that you feel that under the present legislation introduced at H.R. 2081 it is not all right to have NEPA waivers. Why 

do you feel it is all right for one and not for the other? 

Mr. GROENE. I am actually not familiar with the first instance 

you raised. In the second instance, Tenth Circuit law has applied 

NEPA to R.S. 24 77 claims. 

Mr. COOLEY. Except the Secretary can waive that? 

Mr. GROENE. I am not familiar with what you are talking about, 

sir. 

Mr. COOLEY. OK. Another thing that I would like to ask you is 

that in your testimony you have given these ten examples of qualified or unqualified or invalid claims on rights-of-way. You also stated that there are dozens of these invalid claims that are present 

pending. Is it possible that you could provide us an accounting of 

the research, etc., and documentation on invalid claims that you 

say that are there? 

Mr. GROENE. Sure, we can provide written information about 

what we have been able to determine so far. Utah citizens are trying to go out and document all the claims that have been made 

within H.R. 1500. It is incredibly time-consuming. It is being done 

by volunteers. It is not completed yet. These are the results of some 

of the work we have done. 

Mr. COOLEY. Of the 5,000 claims in Utah that you stated, how 

many of those have you determined with the limited amount of volunteers that you have that are valid or invalid? 

Mr. GROENE. I don't know. 

Mr. COOLEY. No idea? 

Mr. GROENE. Probably a high percentage because the areas that 

we are looking at are invalid but that is not anywhere near the 

5,000 number. Many of the 5,000 claims are valid claims that we 

use in Utah to get to work on every morning. The claims here are 

the ones that are being used to try to interfere with wilderness designation that we are talking about. 

Mr. COOLEY. Thank you, Mr. Chairman. 

Mr. HANSEN. Thank you. Libby Fayad, I appreciate your being 

with us. Mr. Scott Groene, thank you for your testimony. I appreciate you coming back. Let me just say very respectfully, Libby, if 

I may, that we didn't get your testimony until 9:30 today. The rules 

of our group is two days ahead of time, if we could. We would appreciate it if we could have your testimony a little sooner than 
33 

that. That gives us a little time to go over it and see what we can 

respond to and how we can have a good dialog with you, but I just 

say that for the record. 

Ms. FAYAD. I apologize. 

Mr. HANSEN. No problem at all. Thank you very much. 

Mr. GROENE. Thank you, Mr. Hansen. 

Mr. HANSEN. We have a vote on right now and as far as I see 

it, there are no further questions, this hearing will stand adjourned. 

[Statement of Hon. Bill Richardson follows:] 

STATEMENT OF HON. BILL RICHARDSON, A U.S. REPRESEr."TATIVE FROM NEW MEXICO 

Mr. Chairman, here we go again on R.S. 2477. Nearly 20 years after passage of 

the Federal Land Policy and Management Act, which repealed R.S. 2477, we are still debating the validity of R.S. 2477 claims. We are in this situation because Congress made the repeal subject to "valid existing rights", an imprecise term at best. 

I believe the Department of the Interior has made a good faith effort in putting forth regulations to address R.S. 2477 claims. I recognize you disagree with this and 

introduced your own bill, H.R. 2081, last week to overrun and supercede the Depa.-tment's proposed regulations. 

We have seen over the past several years an explosion of R.S. 2477 claims. Dog- sled routes, footpaths, and cattle trails are being claimed as R.S. 2477 rights-of-way. 

Instead of a careful analysis and resolution of such claims, 1 am concerned that H.R. 

2081 will be the vehicle to rubber-stal!lp any and all such claims. The bill turns case law and legal procedure on its head. What other landowner has the burden of proof 

placed on them, rather than the claimant? 

We have heard from people concerned about the need for access across Federal 

lands. If R.S. 2477 claims were the only means of such access, I would be concerned 

too. However, it isn't. There are other existing Federal statutes that grant rights- of-way. I am aware, Mr. Chairman, that in Utah alone, over 700 FLPMA rightsof-way have been granted since 1976. 

I think an important point that is overlooked in this debate is that Federal landownership is not what it was 50, let alone 100, years ago. To the extent R.S. 2477 

claims cross what are now former Federal lands they are jeopardizing private property. Are States and counties prepared to compensate private landowners or do all 

these roads suddenly end where private property starts? Are States and counties 

prepared to pay for maintenance to a public highway standard of all these claimed 

rights-of-way? Mr. Chairman, R.S. 2477 claims have serious implications for the management of our national parks, forests and refuges, as well as our public lands. As such, these 

claims deserve careful consideration. I look forward to the testimony of our witness on this important issue. 

[Whereupon, at 11:55 a.m., the subcommittee was adjourned, and 

the following was submitted for the record:] 
34 

104TH CONGRESS H R 2081 1ST SESSION 

• • 

To recognize the validity of rights-of-way granted under section 2477 of 

the Revised Statutes, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 20, 1995 

1\Ir. IlA..'\SEK (for himself, Mr. DOOLITTLE, and 1\Ir. SHADEGG) introduced the 

following bill; which was referred to the Committee on Resources, and in 

addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To recognize the validity of rights-of-way granted under 

section 24 77 of the Revised Statutes, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 fives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Revised Statutes 24 77 

5 Rights-of-Way Settlement Act". 
35 

2 

1 SEC. 2. NOTICE OF RIGHTS-OF-WAY ACROSS PUBLIC LANDS 

2 GRANTED UNDER REVISED STATUES SEC· 

3 TION2477. 

4 (a) NOTICE OF RS 2477 RIGHT-OF-WAY.-Any 

5 State, political subdivision thereof, or other holder of a 

6 right-of-way across public lands which was granted under 

7 section 24 77 of the Revised Statutes before the enactment 

8 of the Federal Land Policy and Management Act of 1976, 

9 or any person who uses or could use the right-of-way for 

10 passage across such lands to access property in which such 

11 person has an interest, may file with the appropriate Sec12 retary of the Department concerned (hereafter in this Act 

13 referred to as the "Secretary") a notice of the right-of14 way. The notice shall be filed "'ithin 10 years after the 

15 date of the enactment of this Act, shall identify the State 

16 or political subdivision thereof through which the right17 of-way passes, and shall contain a map and a general de18 scription of the route, termini, and scope of the right-of19 way. 

20 (b) RECOGNITION OF OR OBJECTION TO RIGHT-OF21 WAY BY THE SECRETARY.-

22 (1) IN GENERAL.-Not later than two years 

23 after the date on which notice is filed with the Sec24 retary under subsection (a), the Secretary shall no25 tify the holder, or other party giving notice, of the 

26 recognition or objections of the Secretary of the 

•HR 2081 IH 
36 

3 

right-of-way or any portion thereof. In considering 

2 any right-of-way notice filed under subsection (a), 

3 the Secretary shall recognize any right-of-way which 

4 was accepted or established in accordance with the 

5 laws of the State where the right-of-way is located 

6 or by an affirmative act of a State or political sub7 division thereof indicating acceptance of the grant. 

8 (2) RECOGNITION.-To the extent the Sec9 retary accepts the right-of-way, the provisions of sec10 tion 4 shall apply. 

11 (3) OBJECTIONS.-If the Secretary objects to 

12 the right-of-way as presented under subsection (a), 

13 the Secretary shall specifically state the Secretary's 

14 objections to the existence, identity of the holder, 

15 route, or scope of the right-of-way, or portion there16 of, and shall provide the factual and legal basis for 

17 each objection. 

18 (4) EFFECT OF PA1LURE TO OBJECT.-lf the 

19 Secretary does not object within the two-year period 

20 required by this subsection, the right-of-way shall be 

21 deemed to be valid as it was presented to the Sec22 retary under subsection (a). 

23 SEC. 3. JUDICIAL REVIEW. 

24 (a) QUIET TITIJE AcTION RI<}LATING TO OBJEC25 TIONS.-Not later than two years after the date on which 
37 

4 

1 the Secretary notifies a holder under section 2(b) of objec2 tions to a right-of-way, or portion thereof, the Secretary 

3 may bring an action based on those objections in a United 

4 States district court in which the right-of-way or a portion 

5 thereof is located to challenge the validity of the right6 of-way or portion thereof. 

7 (b) BURDEN OF PROOF.-In any action brought pur8 suant to subsection (a), the United States shall bear the 

9 burden of proof on all issues, including (but not limited 

10 to) proving that11 (1) the right-of-way was not a public right-of12 way; 

13 (2) the right-of-way was not accepted or estab14 lished in accordance with the laws of the State 

15 where the right-of-way is located or by an affirma16 tive act of a State or political subdivision thereof in17 dicating acceptance of the grant; 

18 (3) the land on which the right-of-way is lo19 cated was reserved for public use at the time of ac20 ceptance of the right-of-way; and 

21 ( 4) the scope of the right-of-way identified m 

22 the notice of right-of-way exceeds that permitted 

23 under State law. 

24 (c) FAILURE To BRING ACTION.-If the Secretary 

25 does not bring such an action within the two-year period 
38 

5 

1 required by this subsection, the right-of-way shall be 

2 deemed to be valid in the form presented under section 

3 2(a). 

4 (d) STANDING.-Standing to challenge an action of 

5 the Secretary under this Act relating to the existence, de6 scription, route, or scope of a right-of-way shall be limited 

7 to a party with a claim of a property interest in or to 

8 the right-of-way or in lands served thereby. 

9 SEC. 4. MANAGEMENT OF LANDS. 

10 A right-of-way accepted or deemed to be accepted 

11 under this Act is valid. The Secretary shall record the 

12 right-of-way in the land records and on maps of the Sec13 retary and shall manage the lands subject to the right14 of-way accordingly. 

15 SEC. 5. MISCELLANEOUS PROVISIONS. 

16 (a) QUIET TITLE ACTION.-Nothing in this Act shall 

17 be construed to prevent the holder of a right-of-way de18 scribed in section 2 from bringing an action at any time 

19 to quiet title with respect to such right-of-way under sec20 tion 2409a of title 28, United States Code, nor shall any 

21 proceedings taken pursuant to this Act be deemed a pre22 requisite to filing any such action. Such action may be 

23 brought ·within the later of24 (1) 12 years from the date of notice of objection 

25 from the Secretary under section 2(b)(l); or 
39 

6 

1 (2) the termination of the limitations period 

2 under section 2409a of title 28, United States Code. 

3 (b) RELINQUISHMENT NOT REQUIRED.-Nothing in 

4 this Act shall be construed to require a relinquishment of 

5 a right-of-way granted under section 24 77 of the Revised 

6 Statutes. A failure to file the notice provided for under 

7 section 2(a) does not constitute a relinquishment of any 

8 such right-of-way. 

9 (c) APPLICATION OF STATE LAw.-Nothing in this 

lO Act shall be construed to limit the application of State 

11 law in determining the validity of rights-of-way granted 

12 under section 2477 of the Revised Statutes. In every pro13 ceeding the law of the State where the right-of-way is lo14 cated shall determine the scope of the right-of-way. The 

15 published regulations of the Department of the Interior 

16 pertaining to section 24 77 of the Revised Statutes which 

17 were in effect until the date of enactment of the Federal 

18 Land Policy and Management Act of 1976 shall be bind19 ing on the Secretary in all such proceedings. 

20 (d) NEPA.-The National Environmental Policy Act 

21 of 1969 shall not apply with respect to actions taken to 

22 carry out this Act. 

23 (e) RoAD CLOSURES.-The Secretary shall not close 

24 any right-of-way granted under section 24 77 of the Re25 vised Statutes which was in use prior to October 21, 1976, 
40 

7 

1 until one year after providing notice to the State and any 

2 political subdivision thereof with jurisdiction over high3 ways in that location which describes the right-of-way and 

4 the purpose of the intended closure. In no event shall the 

5 Secretary close any such right-of-way if closure would 

6 leave any non-Federal lands adjoining the right-of-way 

7 without an established public or private access. 

0 
41 

3!1.!;. litmn afi!U!pn.smafiues 

t:anttnitttt an ~tl!QUrtts' 

~on, J)Gt 205t5 

July 25, 1995 

MEMORANDUM 

TO: Republican Members, Subcommittee on National Parks, Forests & Lands 

FROM: Allen D. Freemyer, Staff Director 

SUBJECT: Hearing on H.R. 2081 

THURSDAY. lULY 27. 1995 IN ROOM 1324 LONGWORTH HOB AT 10:00 A.M. 

H.R. 2081 (Hansen), to recognize the validity of righ~f-way granted under section 2477 of the 

Revised Statutes, and for other purposes. 

A detilled briefmg paper is attached. If you have any questions, please contact me at x6m6. 

Attachments 
42 

BRIEFING PAPER ON H.R. 2081 

SUMMARY: 

H.R. 2081, introduced by Chairman Hansen, seeks to develop a process by which RS 2477 rights 

can be settled. Essentially, H.R. 2081 establishes a process that will accomplish the goals of 

cataloging RS 2477 claims and settling those claims. 

ANALYSIS: 

H.R. 2081 is based on the premise that under the 1866 Act, mere acceptance of the offer of a rightof-way deems them valid unless proven otherwise. Secondly, H.R. 208! establishes a simple 

process through which these rights can be settled. 

Section 2: Requires that any State, political subdivision or individual who holds a right-of-way 

across public lands must file a notice of the right with the appropriate Secretary within ten years of 

enactment The notice shall include a map, general description of the route, termini and scope of 

the right-of-way. The ten year period is necessary given the fact that some states contain thousands 

of these right-of-ways. 

Not later than two years after the notice is received, the Secretary must either accept the notice as 

valid or must reject the notice or portions of the notice. If the Secretary accepts the notice or fails 

to object, the right-of-way is deemed valid. If the Secretary does object, the objection must state 

the what the objection is and provide a factual and legal basis for each objection. 

Section 3: Not later than two years after a holder is notified of the Secretary's objections, the 

Secretary may bring an action based on those objections in the United States District court 

challenging the validity of the right-<>f-way. In such an action, the Secretary bears the burden of 

proof that the right-of-way in some fashion is invalid. If the Secretary fails to bring an action 

within the two year period, the right-of-way is deemed valid. 

Section 4: If a right-of-way is accepted or deemed valid, the Secretary must record the right-of-way 

in the land records and manage the lands subject to the right-of-way. 

Section 5: Nothing in the Act prevents the holder of a right-of-way from bringing a quiet title 

action under the Quiet Title Act and failure to file a notice does not constitute a relinquishment of a 

right. This section also provides that State law shall be used to determine the validity of RS 2477 

right-of-ways. (This is perhaps the most important aspect of H.R. 2081.) Lastly, the Secretary is 

prohibited from closing any RS 2477 right-of-way without appropriate notice. In no event shall a 

closure result in land-locking of a non-federal owner. 

-2· 
43 

Admmistration Position: The Administration is having difficulties getting their testimony prepared 

in time for the hearing although they have had the bill since the 18th of July. The Administration is 

expected to oppose H.R. 2081. 

ORIGJN OF R.S. 2477 RIGHTS-OF-WAY 

The right-of-way for the constructWn of highways 

over public lands, not reserved for public uses, 

is hereby granted. 

With this seemingly simple, 20-word federal statute Congress offered to grant rights-of-way to 

construct highways over unreserved public lands. Originally, the grant was Section 8 of a law 

entitled ·An Act Granting Right of Way To Ditch and Canal Owners Over the Public Lands, and 

For Other Purposes." The law was also known as the Mining Act of 1866. Several years after the 

Act was passed, this provision became Section 2477 of the Revised States, hence the reference as 

R.S. 2477. Later still, the statute was recodified as 43 United States Code 9 (U.S.C.) § 932. 

IDSTORIC IMPORTANCE 

R.S. 2477 was passed during a period in our history when the federal government was aggressively 

oromoting settlement of the West. Under the authority of R.S. 2477, thousands of miles of 

nighways were established across the public domain. It was a primary authority under which many 

existing state and county highways were constructed and operated over federal lands in the Western 

United States. Highways were constructed without any approval from the federal government and 

with no documentation of the public lands records, so there are few official records documenting the 

right-of-way or indicating that a highway was constructed on federal land under this authority. 

REPEALED 

One hundred and ten years after its enactment, R.S. 24T! was repealed by the Federal Land Policy 

and Management Act {FLPMA) of 1976. 

THE ISSUE 

Although this century-old provision was repealed over 18 years ago, its impact is still being felt, 

because highways established before October 21, 1976 (the effective date of FLPMA) were 

protected, as valid existing rights-of-way. 

GRANPFAIHERED RIGHTS 

In recent years, there has been growing debate and controversy over whether specific highways were 

constructed pursuant to R.S. 2477, and if so, the extent of the rights obtained under the grant. 

-3-
44 

EVOLUTION OF CONTROVERSY 

Prior to the late 1970s, there was little hint of the ensuing controversy over R.S. 2477. The 

Depanment of the Interior (DOI) did little to manage these rights-of-way, primarily deferring to 

state law and controL 

LINK TO WILDERNESS 

The issue began to emerge with the initiation of the wilderness inventory process for BLM lands 

outside of Alaska in 1977. For purposes of wilderness inventory, (specifically for what constitutes a 

"roadless• area) the DOI followed FLPMA's legislative history and adopted a definition of a road 

that included a requirement for some type of construction by mechanical means. This definition 

allowed for inventory of large blocks of public land for wilderness consideration, but it also created 

confusion because the definition of what constituted a "road" over public lands could be seen as 

different from the definition of a "right-of-way. • 

STATE DifFERENCES 

There have been few problems regarding R.S. 2477 rights-of-way in most public land states 

although states have handled the issue differently. This may be because of the differences among 

state laws, although a number of other factors also influence this situation. 

Some states have not recognized R.S. 2477 highways and other states have hundreds. The number 

of recognized hlghways is, however, neither an indication of problems associated with R.S. 2477 

nor of the potential for controversy in the future. Oregon currently has the greatest number of 

recognized R.S. 2477 highways, with 450, but relatively few problems have resulted from these 

recognized claims. On the other hand, a state with a large number of recently asserted claims may 

be an indication of potential controversy. At the present time, Utah has the greatest number of 

assenions, with over 5,000, while only 10 R.S. 2477 highways have been recognized. 

R.S. 2477 IN UTAH 

To date, Utah has been the focal point for most of the controversy. The issue erupted in 1987 over 

a popular Southern Utah back-{;ountry road called the Burr Trail that borders BLM Wilderness 

Study Areas (WSAs) and passes through two units in the National Park System. With recognition of 

the Burr Trail as an R.S. 2477 highway, the local county holder of the right-of-way initiated 

maintenance and upgrading of the existing road. Plans for road realignment and resurfacing led to 

extensive litigation in Federal District Court and ultimately in the lOth Circuit Court of Appeals. 

Issues in contention included the scope of the R.S. 2477 grant and what rights, if any, the county 

had to improve the road and the federal government's ability to impose mitigation of impacts to 

WSAs and National Parks and Recreation Areas. Therefore, the County has successfully pursued its 

claims on the Burr TraiL 

-4-
45 

CONTROVERSY SPREADS 

The R.S. 2477 controversy soon spread to other parts of the state. For several years, citizen groups 

have proposed that there be additional public lands, beyond BL\<1 recommendations, considered for 

wilderness designation. In response, some counties began asserting R.S. 2477 rights-of-way on 

federal lands managed by BLM and the National Park Service. Many of these claims, if deemed 

valid, could potentially disqualify areas in citizen wilderness proposals. Additionally, the BLM has 

recently given several Utah counties trespass notices for deviations in the established right-of-way 

necessary for maintenance. 

R.S. 2477 IN ALASKA 

Prior to 1959, nearly all of Alaska was public domain under federal control. This, along with the 

great size of the state, its sparse population, few constructed roads, and dependence upon 

nontraditional means of transportation, complicates the issue of access in Alaska. 

ACCESS AN ISSUE 

R.S. 2477 emerged as an issue in Alaska in the mid·l980s when the U.S. Fish and Wildlife Service 

and National Park Service began to prepare their land-use plans for Refuges and Parks in Alaska. 

This federal action precipitated the State of Alaska's interest in using R.S. 2477 to obtain rights-ofNay over federal lands as state and local governments in the Lower 48 States had during their own 

early developmental periods. The state began to identify historical access routes across federal lands 

(including Conservation System Units which are areas designated for special protection by the 

Alaska National Interest Lands Conservation Act (ANILCA)) that potentially qualified as R.S. 2477 

highways. These access routes were identified under Alaska state law in 1961 in the AS § 

19.45.001(9) Act. This law included seasonal trails, footpaths, and traditional roads and trails used 

by wheeled and tracked vehicles. 

SECRETARIAL POLICY DEFINES CQNSIRUCTION 

In 1985, representatives from diverse Alaska interests began a concerted effort to deal with the R.S. 

2477 issue. Responding to this intense interest, the Secretary of the Interior issued in 1988 new 

policy on R.S. 2477 in the form of a policy statement that applied to all public land states using 

criteria contained in the 1986 BLM Rights-Of-Way manual and expanded to include criteria defined 

under Alaska state law. The policy statement included a definition of construction that in certain 

instances accepted mere use or passage as proof of the existence of a highway. As might be 

expected, the policy is viewed quite differently among competing public interests. Some view the 

current policy as extremely important to the economic and social development of Alaska because it 

maximizes access options over federal and possibly even private lands. Others view the policy as a 

new threat to federal lands, particularly the newly established National Forests, Refuges, Park 

Units, and other specially designated areas. 

-5-
46 

CONGRESS DEBATES DIE ISSUE AND DIRECTS TIIIS REPORT 

The growing number of road assertions in Utah and Alaska and the growing controversy over the 

issue between states and counties and interest groups caught the attention of Congress. rn 1991, the 

House of Representatives passed H.R. !096. This bill would have imposed a cutoff date for claims 

and specified how the POI would handle future claims. The Senate adjourned without acting on 

H.R. 1096. 

MORATORIUM PROPOSED AND DROPPED 

In addition, the House-passed fiscal year 1993 appropriations bill for the DO! and related agencies 

provided for a moratorium on further processing of claims by the POI, pending completion of 

legislation. There were no comparable provisions in the Senate version. In conference, the House· s 

moratorium provision was dropped from the appropriations bill, but the conference report did direct 

the DOI to conduct a study of this history and management of R.S. 2477 rights-of-way. 

THE PROPOSED REGULATIONS 

The Department of Interior issued proposed regulations on July 29, 1994 "aimed at settling 

longstanding confusion over the existence and management of many rurai Western 'highways' across 

public lands. • The initial regulations granted a 90 day public comment period and that deadline was 

extended at the request of the Alaska and Utah delegations. Subsequently, an additional request was 

made by Members of the Alaska and Utah delegations to the Secretary to withdraw the regulations 

completely. The Secretary responded by extending the comment period to August I, 1995. 

SUMMARY OF THE PROPOSED REGW.ATIONS: 

As proposed, the regulations attempt to establish a uniform system by which all claimed RS 2477 

rights-of-way could be adjudicated. 

FILING OF CLAIMS 

The proposed regulations require that a claimant file with the appropriate land management office 

within two years of issuance of the final rule a request for an administrative determination of the 

validity and/or scope of each RS 2477 right-of-way. Each claim is required to include sufficient 

information to demonstrate that each element of RS 24 77 and the proposed regulations has been met. 

Claimants are required to provide historic information as well as documentation demonstrating such 

requirements as proof of construction, public use, etc. If the processing officer believes more 

information is needed, the claimant will be required to provide additional information. All of this 

information must be provided even if the claimed RS 24 77 has already received a judicial 

determination of its existence. 

-6-
47 

Filing of a claim also starts the clock running on the applicable twelve year statute of limitations 

period for filing a quiet title action in Federal Court. However, there is no provision to extend the 

twelve year statute of limitations time period if a claimant does not receive a final determination 

from the agency within the twelve year period. 

FAILURE TO FILE A CLAIM 

Failure of a claimant to file a timely claim will result in relinquishment of any rights that may be 

acquired under the administrative adjudication. Furthermore, if a claimant is unable or does not 

comply with further requests for information by the agency, the claimant relinquishes any rights 

they may have to a right-of-way. Even if the right exists under a judicial determination, the 

regulations attempt to relinquish those rights if the regulations are not properly followed. Even in a 

state such as Oregon where there are over 450 established RS 2477 rights-of-way, the counties and 

state will be required to file claims on these rights-of-way, completely ignoring the judicial 

determinations. 

ADMINISTRATIVE DETERMINATION AND APPEALS PROCESS 

The appropriate Agency will make a final determination on each claim filed following a public 

notice and comment period. This final determination then triggers the opportunity for any interested 

party to appeal the final decision to the Director of the determining agency. 

ANALYSIS OF REGULATIONS 

By most accounts of County Commissioners, state officials and attorneys practicing in this area, the 

regulations as proposed are so adverse to these communities and so unworkable that the regulations 

must be withdrawn. Primarily, these regulations place an incredible burden on local and state 

governments that will be impossible to meet. Under the history of RS 2477, these rights-of-way 

were established and an actual property right was granted to the right-of-way holder. Thus, 

extinguishing these property rights is not something that can be taken through a simple 

administrative action and without compensation. 

Although on a case-by-case basis the burden of proof does not seem tremendous, the fact is that in 

most cases the claimant will be a single county, borough, city or state government that must make 

thousands of these claims and provide the proof behind each and every right-of-way. For example, 

in the State of Utah there are over 5,000 proposed RS 2477 rights-of-way. Given the process as 

outlined in the proposed regulations, many of these claims will be finally adjudicated in a court of 

law. 

-7-
48 

Statement of John D. Leshy 

Solicitor, U.S. Department of the Interior 

Before the House Resources Subcommittee on 

National Parks, Forests, and Lands 

"R.S. 2477 Rights-of-Way Settlement" Bill-- H.R. 2081 

July 27, 1995 

I am pleased to have the opportunity to testify here today on the recently introduced bill, H.R. 

2081, regarding R.S. 2477 rights-of-way. R.S. 2477 is, of conroe, a subject of some 

controversy and of considerable interest to the Department and several of its agencies. Although 

we strongly oppose H.R 2081, we welcome your interest in addressing this problem and would 

be happy to continue to work with you to find an acceptable solution. 

As this Subcommittee knows, RS. 2477 was originally enacted as part of the Mining Law of 

1866. It read, in its entirety: "The right-of-way for the construction of highways across public 

lands, not reserved for public uses, is hereby granted. " Congress repealed this statute nearly 

two decades ago, in Section 706(a) of the Federal Land Policy and Management Act of 1976 

(FLPMA). The repeal did not, however, terminate already existing highway rights-of-way 

created under R.S. 2477. While R.S. 2477 was a law appropriate for its time, Congress has 

since enacted several other statutes that provide access to and across federal lands. 

Nearly two decades after its repeal the issue of preexisting rights-of-way is still unresolved. The 

profusion of unresolved claims presents a planning and management problem for federal land 

managers and other landowners and uncertainty for potential right-of-way holders and users of 

public lands. Confusion and controversy have resulted. 

The Department published a proposed rule nearly one year ago, on August l, 1994, to address 

these rights-of-way created no later than October 21, 1976 by the "construction" of "highways" 

across unreserved public lands. In order to allow full public participation and in response to 

Congressional requests, the Department extended the comment period to a full year; it is still, 

in fact, open. We have received over 3200 comments on the proposal. 

The Department's goals in issuing the proposed regulation are simple: To explain how we will 

apply the statutory criteria and to provide a workable administrative process and standards for 

recognizing valid claims with finality. Unfortunately, this bill does not accomplish either of 

these goals and we cannot support it. 

This proposal would stack the deck heavily in favor of R.S. 2477 claimants. The bill would 

make it too easy to file new and frivolous claims and too burdensome for the government to 

reject ones that do not meet the statutory criteria. The net result is that the bill could litter the 

public lands with thousands of new rights-of-way and quite likely restrict, without compensation, 

existing property rights in private lands that were once public lands. Under this bill, virtually 

anyone could file a claim within ten years of enactment. All the bill requires to support a claim 

is a "notipe" along with a "map" and a "general description" of the "route, termini, and scope" 

of the right-of-way. The bill would require the United States to accept or reject every claim, 
49 

no matter how poorly demonstrated, within 2 years of Iilin_s .anil &t:l• .to file a lawsuit against 

the claimant within 2 years in order to preserve its objecti12n~e .;J1itcr.wi~e. the claim is deemed 

valid. The bill would give the United States the burdev \>l prl:,,;,f<.m• ''&li issues." 

A claimant's failure to file even this minimal notice wlthi~t !';3 ·y<:~r' 'ha;, no negative effect on 

the claim. Section 5(a) preserves anyone's right to flie ·a 'ILr>k!;;ci\ •under the Quiet Title Act 

indefinitely, by failing to provide an effective trigger Df :tbi.: :ntalntr ~~f limitations. Rather, 

claimants can file a lawsuit within twelve years of the .Se!:T.:'mry'sa;J~cuun of a notice ( § 5(a)(l)) 

(which, of course, greatly lessens the incentive to file a .not,\(::::) •.>.r -.,jJ;\;in l2 years of discovering 

that the federal government has a adverse claim to !he right-•r(f·.Wl!} (§ .5(a)(2)). Section 5(b) 

goes on to specifically provide that failing to file •a rMi[J(;., eTe;r, ·wrihin 10 years, does not 

constitute relinquishment of the claim. This effectively requires the :f~::deral government to take 

piecemeal, individual, direct actions on every right-of-way c\•a.irn in or<"..er to close the window 

of opportunity for new rights-of-way that the bill provides. UR:'se :pmvisions render the bill 

ineffective and counterproductive. It would multiply, rather than reduce, the conflicts and 

confusion over R.S. 2477. The Department's most important goeJ in this exercise is to bring 

finality to the uncertainties left open by the repeal of R.S. 2477 The bill does exactly the 

opposite. 

In effect, then, the bill actually resurrects this long dead pmvisioo, considerably broadening 

rather than narrowing the problems it has created. The bill .reopen!i ~ndefinitely the opportunity 

that R.S. 2477 once provided for obtaining rights-of-way acro:.-s fede.rallands, and it does so at 

the expense of existing law, National Parks, military lands,. wiklli1e rrfuges, and other sensitive 

federal lands, as well as Indian and Alaska Native lands and private lands. 

Furthermore, the bill does not provide a workable process or ·standards to evaluate claims. 

Much of the Department's proposed regulation focuses on providing .a clear public process with 

identifiable standards by which claims could be made and evaluated.. This approach would spare 

individual claimants and the United States the haphazard results a:oo considerable expense of 

proceeding in individual court battles to clarify the rights at issue. This bill takes the opposite 

approach. 

Section 5(c) of the bill would order the application of state law to R.S. 2477 decisions, but does 

not require that the state law be consistent with the terms of R.S. 2477 itself. State law has a 

role to play in R.S. 2477 to the extent it does not conflict with the terms of R.S. 2477 itself. 

But state laws that do not require "construction" of a "highway" over unreserved public lands, 

for example, do not meet the requirements of R.S. 2477 and did not result in a grant of a rightof-way. · 

For example, Alaska Statutes§ 19.10.010 purports to create ri_ghls .. nf-way along each section 

line 100 feet (or four rods) wide. As you know, section lines mil in ;~_grid, creating one-mile 

squares over the entire landscape. There has clearly be.en no cr.nstruction and there are no 

highways over most of these section lines, but under this biU, rights--of- way on such imaginary 

lines would be deemed valid. As Secretary of the hner.ior Bliss said in 1898, this dedication of 

2 
50 

rights-of··way without actual construction of a highway is a "marked and novel liberality" with 

the law, which "certainly was not intended to grant a right-of-way over public lands in advance 

of an apparent necessity therefor, or on the mere suggestion that at some future time such roads 

may be needed." 26 I. D. 446 (1898). 

Congress did not say in 1866 that rights-of-way for highways that might be constructed in the 

future are hereby granted and it did not say that state law controls the matter. That, however, 

is what this bill says. It rewrites, in other words, the 1866 statute. The Department has long 

looked to state law for guidance, but has never interpreted R.S. 2477 to require the United States 

to follow state laws that clearly accept more than was offered by the federal statute. 

The only state laws that the Department and the courts have heretofore regarded as relevant for 

R.S. 2477 purposes are those that were in effect at the time of the construction of the highway, 

or prior to the repeal of R.S. 2477. This bill would, by contrast, allow state laws that are 

passed much later to redefine the terms of R.S. 2477, apparently without limitation. For 

example, the state of Utah passed a law in 1993 that purported to redefme the terms of R.S. 

24 77 very broadly, seventeen years after its repeal. This bill would validate this and other such 

Jaws. 

The bill's approach is not workable or defensible. State law has a role to play in R.S. 2477's 

application, but it should not read out requirements of the underlying federal law or be allowed 

to reach back and rewrite history. 

The bill does not protect private property or the lands of Indians or Alaska Natives. While the 

bill intends to provide access to private property, it does not consider the implications of creating 

access to and across private property not wanted by the owners of that property. An overly 

broad reading of R.S. 2477 could create unwanted public access across private property by 

authorizing claims of "public" roads in lands that have passed out of public ownership. The 

Department is especially concerned that individuals may seek to use R.S. 2477 as a method of 

securing access to and across Indian and Alaska Native lands, as well as private property. 

The bill has other problems. We are troubled by the provision allowing anyone who uses or 

could use a right-of-way to access private property to have standing to claim it as an R.S. 2477. 

This could be read to eviscerate the longstanding requirement that an R.S. 2477 highway be 

public. 

We disagree strongly with Section 3( d), which WO\}ld prevent the public from participating in 

or challenging actions taken under the bill. The lands on which R.S. 2477 claims may be made 

in many cases remain public lands today. It runs against the whole tenor of modem public land 

law and of usual Congressional policy to preclude public participation in R. S. 24 77 proceedings. 

We believe that the test that normally determines whether someone has standing to contest a 

Departmental action, that he or she be "adversely affected," should apply. 

The bill would place the burden of proof "on all issues" on the federal government, even though 

3 
51 

the Department does not have access to the basic information 'Itreded to resolve many of the 

questions raised. This places the Department in the difficult po<>ititm .:)f proving that someone 

else did not do something at any time since 1866. Clearly, dte :h!ilde.l of a right-of-way is in a 

better position to provide information substantiating the constnr ... "':.i<!'JJ lRnd use of a highway than 

the federal government. Furthermore, this reverses the longst.anding rule of law, many times 

confmned by the U.S. Supreme Court, that ·"doubts" regardmg any federal land grants "are 

resolved for the Government, not against it." See. e.g., .!)J!ited_~~s v. Union Pacific R. Co., 

353 u.s. 112, 116 (1957). 

We also question the wisdom and necessity of Section .S(e), w~ncl1 would provide new and 

restrictive procedures for road closures. It could endanger po'lv!.ic .

1.;;Jety, by precluding road 

closures in cases of flood, fire, or other dangerous condi.tion~. rSN· i!D lead to an inability to 

protect fragile historic, cultural, or natural resources. 

In general, the bill complicates and prolongs the existing problems of dealing with R.S. 2477. 

I appreciate the opportunity to testify on this important matter. I will be happy to take 

questions. 

4 
52 

WRITrEN TESTIMONY 

REPRESENTATIVE BEVERLY MASEK 

FOR 

ALASKA STATE SENATE PRESIDENT DRUE PEARCE 

AND 

ALASKA STATE HOUSE SPEAKER GAIL PHILLIPS 

BEFORE THE 

UNITED STATES HOUSE COMMITIEE ON RESOURCE 

NATIONAL PARKS, FORESTS AND LANDS 

SUBCOMMITTEE 

REGARDING 

REVISED STATUTE 2477 RIGHTS-OF-WAYS 

INTRODI!CTION 

JULY 27, 1995 

Updated 7/24/95 

Mr. Chairman and members of the National Parks, Forests and Lands Subcommittee, I want to 

thank you for this opportunity to le.Stify on potential legislation involving Revised Statute 2477 

Rights-Of Way. For the record, my name is Beverly Masek, Alaska State Representative from 

Willow, Alaska. I will be presenting joint le.Stimony on behalf of the Alaska State Senate and 

Alaska House of Representatives. 

Our time is limited for oral testimony so I request that our entire wrirten le.Stimony be entered into 

the record. I would also like to poim out that we are commenting on discussion draft legislation 

dated July 17, 1995. 

Mr. Chairman, I have two purposes for testifying here today. First, I want to impress on the 

members of the subcommittee the dire situation that exists in Alaska relative to access to private, 
53 

state and federal lands. Access that by and large all other states in these United States have taken 

for granted. I have with me some maps which I hope will assist me in clearly illustrating this 

point. 

Secondly. I want to express strong Alaskan support for federal legislation recognizing the validity 

of rights-of-way granted under the previous Revised Statute 2477. 

Alaska has gone through a massive land and resource reallocation process since statehood in 1959. 

We have seen the native claims settled, the withdrawal of huge chunks of federal lands into 

National Paries, Refuges. Forests and Wilderness area and the state selection of its land 

entitlement. What is still painfully obvious. however, is that convenient and inexpensive access to 

these lands is either severely lacking or non-existent. 

When Congress passed the 1980 Alaska National In~erest Lands Conservation Act, it 

acknowledged the disparity between the need to establish transportation and utility corridors 

throughout the state and the Jack of available !eehnical information on which to establish those 

routes. As a result, Congress created Title 11 which prided a mechanism for establishing 

Transportation and Utility corridors across federal lands sometime in the future. Unfortunately, 

there has never been a corridor established under Title II due to the resulting complex process 

created by the agencies. My point is that Congress clearly recognized the need for access 

throughout Alaska for a variety of purposes. I can assure you that the need has not diminished. 

Preserving traditional public rights-of-way across federal lands is an issue that is extremely 

important to all western states, where, in most cases, the federal government is the largest land 

holder. 

For example. in Alaska, which is twice the siw of Texas, or as large as Texas, California and 

Montana combined, the federal government holds over 220 million acres of land. That includes 

over 54 million acres of National Paries and Preserves, 90 million acres of BLM and Forest Service 

lands, 75 million acres of land designated as National Wildlife Refuges, and 2 million acres of 

Military withdrawals. 

As a brief aside, [ would like to share with you a fact that is a particular point of irritation to 

Alaskan- 68 percent of all National Park Service lands are in Alaska; 85 percent of all Fish and 

Wildlife Service lands are in Alaska; 34 percent of all Bureau of Land Management lands are in 

Alaska; and 60 percent of all federal lands designated as wilderness are in Alaska. In fact. over 34 

percent of ALL federal lands are in the State of Alaska. 

As you can imagine, these vast federal holdings, and federal regulation of these lands, have farreaching implications on ;public access to lands owned by the state, native corporations and private 

individuals - about 152 million acres. or 42 percent of the total acreage of the state. 

ISSUE OVERYIEW 

Revised Statute 2477, which was enacted as section 8 of the Mining Law of 1866, provides. in 

pertinent part: 

The right-of-way for the construction of highways over public lands, not served for 

public uses, is hereby granted. 

The rights-of-way granted pursuant to section 8 of the Mining Law of 1866, commonly referred to 

as RS 2477 rights-of-way, were open-ended, self-executing grants by the federal government that 

were accepted, or established, by public use. No prior federal application for such a right-of-way 

was required, and no notation appeared in land office records. 

In effect, the RS 2477 grant contained in the Mining law of 1866 operates to convey an irrevocable 

right-of-way to the public across unreserved federal lands. Federal coun ruhngs and, m fact. 
54 

pepartme~t of Interi~r regulations promulgated to implement the RS 2477 grant, confll'l11 this 

mterpretanon of the nght-of-way grant contained in the Mining Law of 1866. 

At this point. it is approl'riate that I clarify one imponant point. Although section 8 of the Mining 

Law of 1866 granted a nght-of-way for the contraCtion of "highways," in its proper historical 

context, "highway" did not mean a modern public street. The word "highway" was used 

generically to include any public passageway, ~uch as a path, wagon r?Jld, pack u:ail, street. alley 

or any other common or customary transportatton route- m Alaska, th1s means sled dog trails. 

Both federal case law and Department of Interior regulations interpreting the Mining Law of 1866 

historically have concluded that. as a matter of federal law, state law governs the method of 

acceptance, or establishment, of RS 2477 right-of-way, and the boundary and scope of the rightof-way. When accepted, or established, RS 2477 rights-of-way are vested interest in real property 

belonging to the public at large. 

In Alaska, the state supreme court has articulated the procedures for accepting RS 2477 rights-of· 

way as follows: 

{B)efore a highway may be created, there must be either some positive act on the 

part of the appropriate public authorities of the state. clearly manifesting an intention 

to accept, or there must be public use for such a period of time and under such 

condition as to prove that the grant has been accepted. 

Historic "use" rather than actual "construction" of the right-of-way is the focus of the RS 2477 

acceptance inquiry in Alaska. 

Regulations recently proposed by the Department of Interior relating toRS 2477 rights-of-way 

attempt to disable the grants already vested pursuant to the provision of section 8 of the Mining 

Law of 1866. Interior's new interpretation of the RS 2477 grant does not recognize the 

establishment of a right-of-way and the vesting of the right of public use of that right-of-way 

unless there has been an affll'!11ative determination made by Interior or a federal district court on the 

existence or scope of a "claim." 

These new regulations ignore almost a century of state and federal jurisprudence relating to the 

grant of RS 2477 rights-of-way. I also maintain that these regulations violate fundamental 

principles of law established by Congress and the courts· specifically, the principle that an 

administrative agency reversal of an established. long-held statutory construction is impermissible. 

Until the release of the new proposed regulations, the Department of Interior's interpretation of the 

federal grant has remained unchanged. At least since 1938, the Secretary of Interior has 

consistently interpreted section 8 of the Mining Law of 1866 a.s granting an RS 2477 right-of-way 

upon the construction or establishment of a highway in accordance with state law. 

The provisions of the Federal Land Policy Management Act of 1976 support Interior's longstanding interpretation of section 8 of the Mining Law of 1866 and undermine the Clinton 

Administration's attempt at narrowly construing the RS 2477 right-of-way grant. 

The RS 2477 right-of-way grant embodied in section 8 of the Mining Law of 1866 was repealed in 

1976 with the enactment of the Federal Land Policy Management Act ("FLPMA "). However. 

pursuant to the express provision of the 1976 Act. all rights-of-way existing prior to enactment of 

FLPMA. including RS 2477 rights-of-way, were preserved. Specifically. sections 509 and 701 of 

FLPMA state: 

Section 509 (a) • "Nothing is this title shall have the effect of terminating any right· 

of-way or right-of-use heretofore issued. granted. or permiued." 
55 

Section 701 (a)- "Nothing in this Act. or in any amendment made by this Act, shall 

be construed as terminating any valid lease, permit. patent. right-of-way, or other 

land use right or authorization existing on the date of approval of this Act." 

Section 701 (h) - "All action by the Secretary concerned under this Act. shall be 

subject to valid existing rights." 

The attempt by the Department of Interior to alter established. long held statutocy interpretations of 

RS 2477 grants is unacceptable. Because of the importance of these changes to Alaska, we are 

asking Congress to once again clarify its policy related to the granting of these rights-of-way. 

IMPACT ON ALASKA 

For its large expanse (586.412 square miles), there are few roads and highways in Alaska. In 

early days traditional travel was by river and by overland trail routes on foot. horseback or dog 

team. When greater numbers of settlers began to flow into Alaska in the 1930's and 1940's and 

subsequent decades, the airplane had become an acceptable and, albeit expensive, sensible means 

of transportation to remote towns and villages and other hard to reach domains. Because of the 

airplane era, highways and secondary road construction over earlier trails had lagged in this remote 

state. 

A close look at Alaska's present transportation systems and the potential rights-of-way grants 

under RS 2477 would show that Alaska still lacks the infrastructure to adequately develop its own 

resources and provide basic services to its people • many of the privileges taken for granted in 

every other state. Unless this obstacle is adequately removed, Alaska can only look forward to 

greater and greater dependence on the federal government for economic relief. 

A close look at Alaska's present transportation systems and the potential rights-of-way grants 

under RS 2477 would show that Alaska still lacks the infrastructure to adequately develop its own 

resources and provide basic service to its people· many of the privileges taken for granted in every 

other state. Unless this obstacle is adequately removed, Alaska can only look forward to greater 

and greater dependence on the federal government for economic relief. 

In 1993, Alaska began a renewed effon to identify and adequately document grants under RS 

2477. About 1.700 routes were identifies with more than 1,300 being researched, About 600 

routes appeared to qualify under RS 2477, Those routes have been complied in an Atlas and 

illustrated on a map which I brought for illustrative purposes. 

CONCLUSION 

Mr. Chairman and members of the committee, the Alaska State Senate and House of 

Representative applaud your efforts to address the access issues embodied in rights-of-way granted 

under RS 2477. We have offered some specific comments on the draft legislation which are 

attached as an Appendix to our written testimony. 

I have circulated maps to illustrate the current access dilemma we face in our state. This situation 

can only deteriorate if the limited access infrastructure processes and mechanisms are further 

restricted or eliminated. Congressional clarification of the rights-of-way granted under RS 2477 

would, however. be a giant step forward. 

We specifically want to thank you for this opportunity to testify before the subcommittee on this 

topic. As you have probably concluded from our testimony, we are extremely supportive of this 

legislation and offer our continued support for definitive Congressional action. 
56 

APPENDIX 

SPECIFIC COMMENTS 

RS 2477 DRAFT LEGISLATION 

1. This draft legislation incorporates both the granting of a right-of-way and the 

management of the right-of-way. Alaska has contended that the management of 

rights-of-way granted under RS 2477 were the responsibility of the respective 

state. It is extremely important that we do not create a management scenario 

where a right-of-way is granted but the Secretary is vested the authority to 

essentially deny its use through closure or other authorities. 

2. Page 3, line 8-10. Section 2 (b) (2). We suggest rewording: 

Recognition -When the Secretary accepts the right-of-way, the provisions of 

Section 4 shall apply. 

3. Page 3, Line 11-17. Section 2 (b) (3). 

We recommend that the basis for any objection must be limited to legal 

requirements related to the grant and not for federal management purposes. 

4. Page 3, Une 15. The term •scope• needs to be clarified or defined. 

5. Page 4, line 7-23. Section 3 (b). 

This section related to "Burden of Proor is well constructed. We definitely 

concur with this requirement. 

6. Page 5, Line 10-14. Section 4. 

We are concerned that this paragraph gives the Secretary considerable land 

management authorities related to the right-of-way which most likely did not exist 

before. 

7. Page 6, Line 23-25. Section 5 {e). We recommend the following additions: 

Road Closures - The Secretary shall not close or restrict any right-of-way, 

granted under section 2477 of the Revised Statutes or any other law which was 

in use prior to October 21, 1976, until one year after providing notice to the state 

and ..... 
57 

JUL -26-95 WED 16.44 LAND/RECORDS/INFO/SECT. FAX NO. 9075631497 P. 02 
58 

IY KNOWLES, GOVERNOR 

STATE OF ALASKA OF>:'!CE OF THE GOVERNOR 

WASHINGTON DC 

July 26, 1995 

The Honorable James V. Hansen 

Chairman, National Parks, Forests & Lands Subcommittee 

House Resources Committee 

U.S. House of Representatives 

8120HOB 

Washington, DC 20515 

RE: H.R. 2081, Recognition of the validity of RS 2477 rights-of-way. 

Dear Chairman Hansen: 

On behalf of Governor Knowles, thank you for the opportunity to 

share our views as your Committee considers this bilL 

The State of Alaska, as you know, has testified extensively to Congress 

regarding the issues associated with RS 2477 rights-of-way in Alaska. Most 

recently, we were pleased to respond to your invitation by participating in the 

hearing and discussion session you held in March. As an alternative to 

providing a witness to this week's hearing, we would ask that the testimony 

and accompanying materials submitted to the subcommittee in March be 

considered in your evaluation of HR. 2081. 

By its clear recognition of the role of state law, H.R. 2081 identifies and 

addresses what is, in our estimation, the most critical issue in the debate over 

RS 2477 rights-of-way. In our opinion your bill reaffirms what Congress 

intended in 1866 and what state and local governments and the courts have 

acted upon since that time. That is, state law governs the acceptance and 

scope of RS 2477 grants. 

We also support the inclusion of a process to bring finality toRS 2477 

assertions and will comment in detail on these provisions before the hearing 

record closes. 

HALL of the STATE~ Suite 336-444 North Capitol Street N.W.-(202) 624·)8)8 
59 

Thank you again for your consideration of the Governor's views. We 

appreciate the opportunity to work with you and your staff on the continuing 

development and action on this legislation. 

cc: Governor Tony Knowles 

Congressman Don Young 

Senator Ted Stevens 

Senator Frank Murkowski 

Sincerely, 

~~u~ cti~c:~ of State/Federal Relations and 

Special Counsel to the Governor 
CoootyCommiSsiolle!s 

Looise Uslon 

D. MalOy OoOds 

Clare !A. Ramsay 

Camille A r..bo'e, 

Clerk/Auditor 

60 

GARFIELD COUNTY 

55 Sou!h Main S~tel, P.O. Box 77 • f'angtjtdl, Utah 84759 Pit 80Hl76~6 • Fax 80J.67H239 

STATEMENT OF 

LOUISE LISTON, COMMISSIONER 

GARFIELD COUNTY, UTAH 

REGARDING 

REVISED STATUTES 2477 

RIGHTS-OF-WAY SETTLEMENT ACT 

(H.R. 2081) 

BEFORE THE 

HOUSE SUBCOMMITTEE ON NATIONAL PARKS, 

FORESTS AND LANDS 

JULY 27, 1995 

WASHINGTON, D.C. 
61 

1 NFOUMJ.:D \JS THAT AL1'H()UGH THE ALIGNMENT CREATED HO UNDUE AND UNNEC:ESSARY DEGRADA1'ION AND WAS PERFECTLY ACCEPTABJ,E J.N THEJ R MtNnS, 

JNDJVJDIJALS H!OHJ:It UP IN THE DEJ>ARTM.!NT HAD ARB!TRAIU!.Y DET"l':RMINfm 

TllAT 'l'HF. WONK COULD NOT GO FORWARD BECAUSE IT LEFT AN INTERVENING, 

llNJlT ST\JRflEil AREA OF LESS THAN ONE-TENTH OF AN ACRE. LOCAL REPHES1<:N1'A'l'1Vt:S JN THE COUNTY AGREED TO INITIATE A LEGAL PkOC~:EDING IN 

Okll~:lit TO GF:1' A RULING FROI'I THE COURT. IT WAS ANTICJPA'n~D THAT A 

RUJ.lNG COIJJ,D BE ACHIEVED IN LESS T!AN SIX MONTHS. TH:F: JtJSTJc~: 

llEPAH'J'MENT IN CONilUI.TATION WITH THE BLM HAVE PROLONGED GOUR'f PROC~:J.:I!JI'<IGS !"OR NEAJtLY TWO YEA!t8, AND THE l'IATTER IS STILL UNRESOLVED 

ALTHOUGH 11' IS SCHEDULED POR A HEARING ON FRIDAY, JUI,Y 28TH, THIS 

Sl•:G'J'JON Ol' ROAD f:IA5 A TOTAL LENGTH OF APPROXIMATELY 300 FEET, IS 

l.OGA'J'F.D ON GROUND 'J"HAT WAS PURCHASED BY THE BLM !<'ROM THE S1'ATE OF 

UTAH, ANTl JS BORDERED ON THE NORTH BY A CAMPGROUND AND ON THE SOUTH 

flY A PAJIUUNG ARF.A THE BLH HAS REQUESTED THE COUNTY EXPAND AS PART 

OF THF:JR OOAD EFfORTS. 

:J'J.rl•: .Qt,JJe..G.U: SIMILAR TO DEER CREEK, THE GULCH ALIGNMENT WAS RF.VlEW!:D 

HY TH~; BI,JI AND F1JllTHJ.;R EXAMINED DUlliNG COURT PROCEEDINGS, THE 

CO\JHT lllRf:CTED Tl! COUNTY TO RELOCATE THE ROAD ON THE llENCii 

AJ>l'liOAC:HJ 00 THE GULCH, AND PLANS WERE DRAWN AND APPROVED AS TO 'l'Hr: 

J,OCA'riON OF THE STRF.AM CROSSING. IN ADDITION, A TITLE V RJGH'f-OF'-

WAY WAS Al.SO ISSUED FOR RELOCATION OF THE ROAD AND THE CROSSING. 

WIJEN GARFH:J,D COUNTY IITAKED THE ALIGNMENT IM ACCORDANCE WJTH COURTAPPROVED PLANS, THE BLH INDICATED THAT THE LOCATION WAS UNACCI':PTi\HJ.E ANI> REQUESTED THAT THE COUNTY MOVI! THE ROAD TO !'HE NOH'fH. THE 
62 

COUNTY GOMPLJ F.D WITH THE BLM' S REQUEST IN AN EFFORT 1'0 COOPERAtE 

IINll J NRTAJ,U:D THE STRUCTURE AT LOCATIONS INDICATED BY THF: flJ,M. 

UPON COM PI .F.TION OF THE STRUCTURE, LOCAL FEDERAL LANJ) MANAGEHS 

HJ.:1'EHMTN~:D TilE STRUCTURE WAS UNACCEPTABLE AND D.n!ANDEIJ THAT IT BE 

Hl•:J,OCA'I'Ell NOkTH OF ITS EXISTING LOCATION. THE S1'RUCTURE WAS A PHECAST CONCRRTE BOX, WHICH REQUIRED SIGNIFICANT EHORT 1'0 RELOCATE 

ANfl Nl•:cF;SSJ T/\TED SEVERAL ADDITIONAL, SECTIONS IN ORDER 1'0 ACCml~lOll/1'1'1<: THE REVISED ALIGNMENT. THE COUNTY STAKED THE NEW ALIGNMENT; 

ANil AS TilE CONTRACTOR SHOWED UP ON THE JOB 1'0 f!ELOCATE THE 

STl(l)CT\JHE, TilE BLM PROTESTED THE SECOND REALIGNMENT. TilE COUNTY 

MET WlTH Bl.M OFFICIALS THE FOLLOWING DAY AND WAS INJ.'OHMED THAT 

lil.;GA!WJ,ESS OF STAKES MARKING WILDERNESS AREAS, REGARJH,],;SS OF A 

l'/\JIKJNG LOT I.OCATED ADJACENT TO THE ROAD AND REGARDLESS OF COURTAPl'HOVEJJ PLANS, THE COUNTY WOULD NEED TO MOVE THE STHUCTURE AN 

AllllJTlONAJ, TEN FEET NORTH. THE COUNTY COMPLIED WITH THE BLM'S 

llJ<:MANDS, HES\JJ..TJNG IN A TOTAL RELOCATION FROM THE OIUGlNA!, COURTIIJ>l'HOV!iD ALIGNMENT OF MORE THAN SEVENTY-THREE FEET. Tm~ BI.M THEN 

I SSIJED A TRESPASS AGAINST THE COUNTY, INCLUDING A STATEMENT THAT 

TilE CO\IN'J'Y HAD RELOCATED THE ROAD TOO FAR NORTH. THE CONCUJSION OF 

TILlS PHO,JECT HAS STILL NOT TAKEN PLACE TO DATE, BUT HAS RESULTED IN 

SJGNTFICANT TIME DELAYS AND ADDITIONAL COSTS TO THE COUNTY. 

:JN STUDYING R.S.2477 HISTORY AND THE CONGRESSIONAl" RECORD 

HBI.A'n:Jl TO PRE-EXISTING RIGHTS-OF-WAY GRANTED UNDER THE STATUTE 

WilEN Vl.PMA WAS ENACTED, I FIND IT VERY CLEAR THAT CONGRESS IJNDERS'J'OOD 'J'HJ.: IMPORTANCE OF R.S.2477 RIGHTS-OF-WAY AND HAD NO INTENTION 

OF J.TMJTING 'tHE SCOPE OF THOSE RIGHTS. IN FACT, FLPMA EXPI.ICITJ,Y 

SAYS SO. ~}:)'; 43 U.S.C. §1701, SAVINGS PROVISIONS, NOTE (h). 
63 

AND YET THAT IS EXACTLY WHAT COUJITIES ARE FACED WITH A'l' 'l'I!E 

PHJ>:SENT TIME IN DEALING WITH FEDERAL AoGENCIES WHEN MAIN'l'AINlNG OH 

l MPHOV:I NG 'l'HESF. ROADS. H. R. 2081 WOULD GIVE DIRECTION TO F!WEHAL 

Mir:NCJ ES AND THEREBY ENHANCE THEIR ABILITY TO BETTER MANAGE FlmlmAL 

t.ANJ)S WITHOUT INTERFERING WITH THE COUNTIES' OBLIGATION TO l'ROVIDE 

SAJ.'E'l'Y FOI< THE TRAVr:LING PUBLIC. POLICIES WHICH ENCOURAGE THE 

:J N'n:HF~;RJ.:NGE Ol•' PROVIDING THAT SAFETY WILL EVENTUAJ.J.,Y m: GllALI,ENOI-:D 

lN COURT AND BRING FURTHER STRESS TO LIMITED BUDGETS. 

PJ,EASE KEEP IN MIND THAT THESE ROADS PROVll>E AGGESS TO YOUk 

LANIJS AS WELL AS PROVIDING ROUTES FOR GOVERNMENT EMPJ,OYEJ.:S AND 

COUNTY CTTIZENS TO TRAVEL TO WORK ON. MAINTAINING AND IMPROVING 

'l'fl!<:SE ROADS TO A SAFE STANDARD BENEFITS ALL OWNERSHIP, WHETHl.:R JT 

H~: PfUVA'fl';, STATE, COUNTY OR OTHER USERIS. UNDER PRESENT MANAGEMli:NT 

PRAGTJ GJo:S, J1' HAS BECOME INCREASINGLY DIFFICULT TO DO THAT. LAST 

YEAR GARF'H:l .• D COUNTY WAITED FIFTEEN i'IONTHS FOR THE PARK SERVJCE .TO 

COMl'J,f:'n; AN ENVIRONMENTAL ASSESSMENT ON A PORTION OF A COUitTY 

HlliH'I'-OF-WAY THAT TRAVERSED CAPITOL REEF NA'f!ONAL PARK. Wf: 

I'OS'I'l'ONED Pl.ANNED IMPROVEMENTS (CROWN I JIG THE ROAD, WHICH HAD BJo;COME 

A CHANNEL JN MOST PLACES, AND BAR DITCHING THE SlD~~s FOR BR1'1lm 

llHA .I NAGE TO PH~:VENT FLOODING AND WASHOUTS). WE WERE TOJ.D THAT H' 

w~; WENT TO WORK, WE WOULD BE SERVED WITH AN INJUNCTION TO S1'0P VS. 

AGTlNG JN GOOD FAITH, GARFIELD COUNTY HAS TRIED FOR CI,OSE 1'0 TWO 

Yl~AlLS NOW TO ngACH AN AGREEMENT--EVEN MEETING HERE JN WASHINGTON 

J.AS'l' NON1'H WITH ASSISTANT IN'l'ERIOR SECRETARIES FRAMPTON ANll 

AliMSTJWNG ANll SEVF:RAJ, STAJo'F MEMBERS ANIO ATTORNE:YS, JT HAS COS'!' 'ft{g 

COUNTY A CONSJDERABJ,E AMOUNT OF MONEY, NOT MENTIONING THE COST TO 

'l'l!J.: l'ATIK SER.Vl cg FOR THE E. A. , TRIPS TO SEE THE ROAD, ETC, IN 
64 

J. Hill'!' ()Jo' Al.L THE 1'Al.K OF BUDGET CONSTRAINTS AND RLIHJNATTNG WAST!-:, 

] CAN'T liELP HUT THINK WHAT THIS BILL COULD DO TO ACCCHIPJ.JSH THOSE 

VERY GOAl~S. TT IS A REALISTIC APPROACH TO SETTJ.TNG A VERY 

CON'l'J<OVERSlAL. fSSUF. VS. AN UNREALISTIC APPROACH SET FO!Cfll IN TilE 

DOl 'S PH.OPOS~:D REGULATIONS WJ!ICH WOULD PLACE SERIOUS FJ NANC:l AI. 

B\JIHH<:NS ON COUNTIES AND THE FEDERAL GOVERN-MENT, FORCING Til EM TO 

\!:iF THEJ R PF.RSONNF:l, AND OTHER RESOURCES JN A WAS'l'8FlJJ. ANJ) 

\!NNEC~:SSAitY MANNER, VERY HONESTLY, THE PROPOSr:D REGULATIONS A!<E 

VI F:WIW HY 'I'HE GENERAl, PUBLIC AS YET ANOTHER UNFUNDED MANDAn:. 1'H~: 

NA'l'JONAl, ASSOCIATION OF COUNTIES STRONGLY OPPOSES THESE PROPOSED 

!n:GUI.A1'JONS AND SUPPORTS COUNTIES IN THEIR EFFOR.'l'S 1'0 PllOVl DE 

ACCESS TO THE PUBI.IC LANDS USING R.S.2477 CORRIDORS. 

SJNCE MANY OF UTAH'S R.S.2477 ROADS AU STATE HIGHWAYS, HAVE 

A'I'TAGHlW '1'0 MY S'l'ATEMENT A RESOLUTION PASSED DURING THE J 995 SF.SSJ ON Ofl' THF. S'l'ATE LEGISLATURE AND I!:NDORSED BY 'l'HE GOVERNOR, WHICH 

S'J'fWNGJ,Y URGES THE UNITED STATES DEPARTMEN'l' OF THE INTERIOR TO 

WJ Tlll>llAW PROPOS~:D REGULATIONS CONCERNING R. S, 24 7 7 HI GHTS-0~'-WAY 

ANil URGING 1'HE UNITED STATES CONGRESS TO RECOGNIZE TH~: AlJ'I'HOHl'l'Y OF 

THE S'I'A'l'F. OF' UTAH TO ADMINISTER RIGHTS-OF-WAY ACROSS FEDERAl, PURl.lC 

J,J\NilS :1 N UTAH, AND TAKE ACTION TO ENSURE THAT AJ)MJ NlSTRA'fJVF: 

1\GENClJ.:S Ol'' 1'HE UNITED STATES TAKE NO AC'l'ION WHICH WOUI,D lN~'Rl.NGE 

Ul'ON TH:I S SOVEREIGN AUTHORITY. 

J AM ALSO ATTACHING A COPY OF A 9TH CIRCUIT COUR1' DECJSJON RF:-

GARlllNG AN R.S.2477 RIGHTS-OF-WAY CASE THAT TOOK l'I,ACE IN ALASKA 

AN!l A MORF. D~;TAIJ,F:D ACCOUNT OF THE CAPITOL REEF NATIONAL PARK 

lRS\JF:. 

H!L CHA l RMAN AND MEMBEJltS OF THE COMMITTEE, J FEE!, 'I'll!' SURVl VAL 
65 

OF UTAH'S HUHAJ. COUNTIES AND COMMUNITU:S AND OTIIEH COUNTIES ANIJ 

COMMUNlTlES THROUGHOUT THE WEST WHICH RELY UPON ACCESS ACROSS AND 

\lSI•: OF THE NATION'S PUBLIC LANDS IS ONCE AGAIN BEING THHF:ATENE!l BY 

FFI>EJ{AL I'OJ.JCY AND REGULATIONS. THIS BILL WOULD BRING BALANCE ANI> 

cm1MON SENSE BACK INTO THE MANAGEMENT OF THOSE VITAL CORRIDORS 

Will Cll NOT ONLY BENEFIT ALL OWNERS AND USERS, BUT SERVE AS A TOOL TO 

BETTER MANAGE THE PUBJ,IC LANDS WHICH THEY ACCESS. 

At.tn<Ohment.s: 

ltmwl ution on Highway Rights-of-Way 

Nnws article, January 1994 

THANK YOU. 
66 

~:API'I.'()!,_Rf.KE. .. ~A'f.lQN_AJ,_.!:aRK: THE BURR TRAIL ROAD THROUGH C:APJ 'l'OL 

rn:EJI PARK WAS ORIGINALLY CONSTRUCTED IN THE LATE 1800'S. UTA!l 

COUNTY HIGHWAY MAPS DATED 1956 SHOW THE CURRENT LOGATJ ON OF 1'!1E 

ltOAil ANll ARSRNCE OF ANY PARK UNIT AT THAT TIME. NF:AR THE 1950 '$ 

HIJ-: COllN'l'Y l<:NGAGF:D lN A PROJECT WHERE A SIGNIFICANT POR'fJON OF THE 

!!01\ll THROUGH CAPITOf, REEF NATIONAL PARK HAD TREES AND OVERGROWTH 

l'llf-lm~ll BACK TO A WIDTH OF AT LEAST FIFTY FEET EACII SIDE OF 1'1H; 

Cr:NTlm l,JNE OF 'THF. EXISTING ROAD. IN ADDITION, THE l-tlGHT-OF-WAY 

'l'IIIWllGfl ONJ•: Mil.!<; OF THE ROUTE THROUGH CAPITOL REEF THAVERSES A 

SJo:C'J'lON OWNF:J> HY GARFIELD COUNTY, AND PREVIOUSLY OWNED BY THE STATF: 

OJ<' U'I'AH. AN ~;CONOMIC DEVELOPMENT ADMINISTRATION PROJECT WAS ALSO 

CONDIJCTg[) FROM 1963 TO 1969 ALONG THE BURR TRAIL AND CAPITOL Rn:F 

NJ.'l'JONAL PAR!( FOR A LENGTH OF APPROXIMATELY 2 HILES. l!lGHT-OF-WAY 

H'l'Al<J<:H Wli:RH PLACED, AND CURRENT RIGHT-OF-WAY HARKERS AT EACH END OF 

'J'ItiE PROJECT STILL EXIST. DESPITE THE LONGSTANDING ACCJ.:PTANCE OF 

'J'NJ<: IHGHT-01"-WAY AND THE IMPROVEMENTS PERFORMED BY GARFIELD COUNTY 

'l'HROUGliOUT THE YEARS, CAPITOL REEF NATIONAL PARK NOW HAS ISSUED AN 

mwVJl<ONMF.NTAL ASSESSMENT, REQUIRING A NARROWING OF THE ROAD AND 

l'lWIIJlll.TING THE PLACgMENT OF GRAVEL ALONG THE ROAD. THEY HAVE Al.SO 

'l'llHEA'J'ENED 'J'HE COUNTY, INDICATING THAT UNLESS THE COUNTY COMPLIED 

W) TH 'l'lllHII. DEMANDS, THEY WOULD ISSUE A DEMAND FOR AN IUS RA1'1lER 

'J'IIAN A l'ONSI ON THE PROJECT AND HAVE CONTINUALLY liAOGERED THE 

COUNTY ABOUT 1 TEMS AS INSIGNIFICAN1' AS STAKING nn: PROJECT FOR 

AEIHAI, SUHVF:YlNG. PARK OFFICIALS REFUSED TO ACKNOWI,IWGE THE FULl, 

Dl ST\!RBEll WIDTH AND HAVE HARASSED THE COUNTY FOR J TS REGULAR 

MAl Nn:NANCE ACTIVITU:S ALONG THE ROAD. 
67 

(RESOLUTION ON HIGHWAY RIGHTS-OF-WAY) 

1995 

G.R. No. By: _______________ . 

A CONCURRENT RESOLUTION OF THE LEGISLATURE AND THE GOVERNOR, 

STRONG!,\' URGING THE UNITED STATES DEPARTMENT OF TH~; IN'J'ERJO!!. 

'l'O WITHDRAW PROPOSED REGULATIONS CONCERNING R. S. 24 7 7 RTGH'l'SOF-WAY AND URGING THE UNITED STATES CONGRESS TO l<ECOGNlY.E THE 

AIJTI!OfU TY OF THg STA'l'E OF UTAH TO ADMINISTER RIGHTS-OF-WAY 

ACROSS l"Jo:DERA!, PUBLIC LANDS IN UTAH. 

_n,. it .. r:~s;g)y_g.Q_ .. _b..x._.Put.......X..Ui slature ..Q.L.J;.b&.._.S,t.!J,!~<:> .. _\l.f .... u_t,!),}l, ... thQ 

(iov<ornoi; c:.?.lJ<;;),lt:rj,.ngJ.]Jcre in. 

Wll~:Hr•:As Congress granted the right-of-way for the c:om·•trnc:Uon of 

hjMhways over public lands, not reserved for public uses, pursuRnt 

l.o SN:tion 8 of the Act, of July 26, 1866, 14 Stat. 253 (t.lw "Aet"); 

Wlll•:rmAs Section 8 of the Act was re-enacted and codified as Rcvi.;;ed 

t:;Latutc 2477 ("R.S. 2477"); 

\vllERJ':AS in H.G.IL No. 1 of the Second Special Se!$slon .in 1993, l.h~' 

!.o~i slnture and thE> Governor have previous! y expressed their 

opposi Lion to actions of the United States Congress, the' ll<'par1;men1. 

of the Interior or the Department of Agriculture that wou l d have 

i.h<> effect of infringing on the authority of the State of Utah arad 

Its subdivisions to administer existing rights-of-way established 

aeross fcdcrn.l public lands in Utah for reasons set forth in that. 

, . .,,..o]ution which arc hereby incorporated by reference; 

WHEREAS in !!.B. No. 6 of the Second Special Session in 1993, the 

Lo~isl "1.\U'(l snt forth the law of the State of Utah as it appli ""' to 

U.S. 2477 rights-of-way, consistent with established law and prior 

admi ni ,.1.ra1.i V<' guidelines established by the Departau.,nt of the 

:lral.crior; 

WlJEfi.EAS the Departmentc of the Interior has nevertheless promulgated 

proposed regulations that would affect these ri ghts-of-wny i.n a 

mann<•r which would infringe on the sovereign rights of the St.at<i' of 

Ul.nh and its subdivisions; 

Wlll!:l1l•:AS the Department of the Interior has not allowed l,he State of 

Utah and its subdivisions meaningful opportunity to participate in 

Ut<• <'rent.lon of R.S. 2477 regulations; 

Wlll•:rmAS the proposed regulations contradict es Labl i ,.!,.,d l uw fH>d 

prior administrative guidelines; 

WllJ<:IlEAS tho proposed gu.idelines would place inordinat<> burdens on 

the State of Utah and its political subdivi•ions; 
68 

WUKKKAS Lhe proposed re1ulations would jeopardj~e v~lid exlstln~ 

J•i 1<(111.><-of-way; 

NOW, TH~:liEFOKE, l:lE l'f RESOLVED that the Legislature of the St.at.n of 

Ut.nh, 1.hc Covflrnor concurring t.herein, strongly urge th<> !)epart.ment 

of the J i•terior to withdraw the proposed regulati:ms on lL S. 24 77. 

HI•: lT FUR'l'lllm RESOLF;Jl that the Legislature of t.he St.ate of Utah, 

l.hn Governor concurring therein, strongly urge the United St.uLes 

Cmuu·""" to recognh:e t.he sovereign authority of the S1.a1.<t of Ut.ah 

>Hod j 1.s subdivisions to administer existing ri ghts-of-wny 

ostt.thl il'hcd across federal public l.anda in t.he Stat." of Utah and 

t.llk<' action to ensure that administrative agenc ics of the United 

su,·L<11' t.ak" no action which would infringe upon this sov0rrd gn 

11\11.1JOJ'j ty. 

HE JT FURTHER RESOLVED that copies of this resoluUon b~• senL t.o 

1.h<t Secretary of the Department of the Interior, the Sp!'>aker of t.he 

lln.i 1.t•d States House of Representatives, the Vice President of the 

Urd ted Stat.cs i.n his capacity as the President of the United States 

~<>nate, and to Utah's Congressional delegation. 
69 

COMMENTS ON R.S. 2477 SETTLEMENT ACT 

Barbara Hjelle 

These comments set forth my understanding regarding the 

conceptual framework of the Revised Statutes 2477 (R.S. 2477) 

Rights-of-way SettlemEl'nt Act (the "Act"). My cxxrments are based on actual ~xperience dealing with R.S. 2477 issues. As an attorney, I have represented Southern Utah counties on R.S. 2477 

issues over the past 10 years. I have been involved in 

litigation over Garfield County's Boulder-to-Bullfrog Road, 

commonly known as the "Burr Trail" Road, since 1987. I 'am 

currently involved in an action filed by Washington County, Utah, 

to "quiet title" to many of its R.S. 2477 rights-of-way. In 

these and •any other situations I have observed, it has become 

apparent tmat local governments are being seriously impacted in 

their efforts to carry out normal governmental functions when 

dealing with public highways which cross federally owned lands. 

I have observed the problems which have arisen in recent 

years as federal land managing agencies have asserted and 

greater control over the actions of the counties who 

traditionally built, maintained and improved these rights-of-way. 

Thousands of public dollars have been wasted in complying with 

the demands of federal employees who have no expertise in road 

management or construction. For example, on the Boulder-to- Bullfrog Road, Garfield County was forced to move a box culvert, 

not once, but twice, at great expense to the county, to meet a technical concern regarding the asserted boundaries of a wilderness study area in a location that was already highly 

disturbed. The ultimate location turned out to be aesthetically 

distasteful, reduced the quality of the road and provided no environmental or other benefit to the public lands. I have 

observed a whole group of federal employees, none of whom were engineers, debate the propriety of road work based on potential 

impacts on just a few inches of soil, even though the area contained no sensitive plants, animals or other resources. The 

cost to th~ taxpayer, not to mention the interference with 

legitimate activities of local governments, is uncalled for, but 

because of hostility to these right-of-way and unjustified 

distrust ot the local governments who manage them, these costs are escalating, with no concomitant benefit to anyone. I 

question whether the federal government is truly prepared to take on the added burdens of managing hundreds of rights-of-way in 

rural areas which have been traditionally managed local 

governments, but unless Congresm acts to correct current 

trends, th~t may well be the result. 

These comments will address the background information 

regarding I.S. 2477, followed by a fairly detailed analysis of 

the Act. 
70 

.L. BACKGROUND 

R.S. 2477 was enacted as section 8 of the Act of July 26, 

1866, 14 Stat. 253, formerly section 2477 of the Revised Statutes 

of the United States. R.S. 2477 states, in its entirety: 

Sec. 8. And be it further enacted, That the right of 

way for the construction of highways over public lands, 

not reserved for public uses, is hereby granted. 

From 1866 until its repeal, R.S. 2477 granted rights-of-way 

"effective upon the construction or establishing of highways, in 

accordance with the State laws." 43 C.F.R. § 244.55 (1939). No 

application to, or approval by, the federal government was 

necessary to accept the grant. See, 43 C.F.R. § 2822.1-1 (1979); 

43 C.F.R. § 244.55 (1939). 

Virtually all of the existing highways and roads in the West 

were originally established as R.S. 2477 rights-of-way. Much of 

the transportation system in the West is still based on R.S. 2477 

rights. I am submitting to you photographs of a few roads in 

Garfield County that rely upon R.S. 2477 as authority for their 

construction, use, and maintenance. 

The prospective offer of R.S. 2477 was repealed in 1976 by 

the Federal Lands Policy and Management Act ("FLPMA"), Pub.L. No. 

94-579, 90 Stat. 2793, 43 U.S.C. § 1701 et seq.. However, FLPMA 

specifically protected R.S. 2477 rights-of-way in existence on 

the date of FLPMA's passage. See, FLPMA §§ 509(a), 701(a), and 

701(h), codified respectively at 43 U.S.C. §§ 1769(a) and 1701, 

Savings Provisions (a) and (h). Such pre-existing rights-of-way 

are property rights vested in the holder. 

The question of protection of vested rights-of-way in the 

Western states was carefully addressed in Congress in discussions 

about the repeal of R.S. 2477. The proponents of FLPMA in the 

Senate assured the western Senators, on the record, that there 

was no intent in FLPMA to abrogate these rights, nor did Congress 

intend to limit the application of state law in interpreting the 

grant. See, 120 Cong. Rec. 22280, 22283-4. (1974). That 

position was honored until recently when the current 

administration proposed new regulations that would, if effective, 

reverse decades of precedent to defeat established rights-of-way. 

~ PURPOSE OF THIS ACT 

The Act will resolve uncertainty regarding existing R.S. 

2477 property rights fairly, taking into account the legal and 

historical realities which apply to these rights-of-way. The Act 

does not alter existing rights or create new property rights. 

Rather, the Act provides a method for administrative recognition 

2 
71 

for rights-of-way that were properly established prior to the 

repeal of R.S. 2477. The Act does not purport to diminish vali~ 

existing property rights which have been honored by Congress 

until now, nor does it supplant a party's ability to pursue a quiet title action in the courts of the United States or, for 

that matter, any other action regarding R.S. 2477 rights-of-way. 

It does, however, clarify the proper r~le for federal 

administrative agencies in dealing with these vested property 

rights. 

The Act comports with existing le!al precedent. And it 

honors interpretations of the grant made by the government duri~g 

the grant's operative life. Based on my experience with R.S. 

2477, I believe that the Act provides a fair and efficient manner to administratively recognize rights-of-way that have been 

accepted pursuant to R.S. 2477. Other proposals, including 

specifically the draft regulations currently under consideratiom 

by the Department of Interior, do not fairly account for longstanding administrative policies and c~urt precedent, nor do they 

accurately address significant burdens on the federal taxpayer 

(not to mention local tax burdens) from elaborate schemes which 

would impose significant demands on the agencies and the holder~ 

of these rights-of-way. This Act provides a proper balance 

between the interests of the administr«tive agencies in 

understanding the lands they manage and the vested legal rights 

of local governments. 

III. SECTIQN-BY-SECTifN ANALYSIS 

~ SECTION l 

This section requires no explanation. 

~ SECTION 2 

Subsection 2(a) establishes that tederal agencies are to be 

notified of the existence of R.S. 2477 rights-of-way across lan~s 

managed by such agencies. Notice for & particular right-of-way 

will be filed with the agency that possesses jurisdiction over the servient estate across which the right-of-way crosses. By 

way of example, notice for rights-of-w~y that traverse lands 

managed by the Bureau of Land Management or within the boundaries 

of a National Park will be sent to the Secretary of the Interior. 

Notice involving National Forest lands will be sent to the 

Secretary of Agriculture. 

Notice may be filed by government~l entities, namely a state or a subdivision thereunder. This allows the governmental 

entities, as representatives of the puwlic, to claim rights-ofway used by the public. In the event that local governmental 

entities do not claim such rights-of-w~y. the Act alternatively 

3 
72 

provides that notice may be filed by a private party that relies 

upon an R.S. 2477 right-of-way to access real property in which 

the party has an interest. This provision allows private parties 

to participate in the administrative settlement provisions of 

this Act only to the degree that the party has a specific 

property interest relating to the particular right-of-way at 

issue. Because these rights-of-way form a significant element in 

access and commerce in the public lands states, it is important 

that those who would be impacted by the loss of access have the 

opportunity to protect their interests. 

Notice would apprise the federal land manager of the 

locatiGn of the right-of-way by showing the right-of-way on a 

map. This provision does not impose the onerous burden of a 

survey, which would place impossible demands on the budgets of 

rural counties. In addition to the map, the notice would include 

a verbal description of the route and its end points. The notice 

would also include a statement of the scope of the right-of-way, 

the most significant aspect being the width of tme right-of-way. 

Finally, the state and local governmental entities possessing 

general jurisdiction over lands in the area would be identified, 

since they are most likely to be the holders of the rights-of-way 

on behalf of the public. 

While the notice provisions m&y appear to be simple, the 

burden on those giving notice will be substantial. Because the 

statute, in order to accomplish its goal, must address each and 

every R.S. 2477 right-of-way, no matter how well established, 

notice must be provided for hundreds of R.S. 2477 rights-of-way 

in states and counties dominated by federally owned lands. In 

many cases, these rights-of-way have been established and used 

for over one hundred years, but, in part because of the longstanding federal regulations cited above, no documentation has 

been maintained. Most of the transportation infrastructure in 

many rural counties is made up of R.S. 2477 rights-of-way which 

may never have been mapped in the fashion now requested. 

Furthermore, determinations regarding scope may never have been 

systematically undertaken for vast numbers of rights-of-way, 

placing additional burdens on those filing notice. For this 

reason, the information required in the notice will place 

significant burdens on those choosing to give notice. 

These notice provisions accomplish an important initial step 

of defining for the federal land managers the universe of rightsof-way that will be settled pHrsuant to the Act. The notice 

enables the land managers to locate all of the rights-of-way at 

issue. The only other method by which the land manager can be 

required to recognize the existence of a valid R.S. 2477 

right-of-way is through court action. 

The ten year time period is intended to all~w time to 

inventory existing rights-of-way and compile the data required by 

4 
73 

the provisions of this section. Ten years may not be enough in 

some instances, given tne requirements of documentation set forth 

by the Act, coupled with the former federal policy discouraging 

documentation and the fact that many of these roads are situated 

in the remote stretches of the West. Keeping in mind the 

financial and staffing constraints of many local governmental 

entities, especially rural governments, ten years appears to be 

the shortest realistic deadline. Governmental entities 

possessing resources that would allow for more expeditious 

submission of information are allowed to do so under the Act. 

Section 2(b) (1) specifies that, from the time notice i~ 

filed, the land manager has two years to notify the party 

submitting such notice whether the Secretary recognizes the 

right-of-way or objects to the validity of any portion of the 

right-of-way. Two years is a reasonable time period, in light of 

the fact that the federal land manager is in possession of 

relevant maps and expertise regarding the lands managed. In most 

cases, the federal employees who have been managing the lands 

will be aware of the existence of the R.S. 2477 rights-of-way 

listed in the notices. 

To determine whether the grant was accepted, the land 

manager is directed to look to the laws of the state where the 

right-of-way is located. Judicial and administrative precedent 

makes clear that state law determines whether the grant was 

accepted. ~ ~. Sierra Club v. Hodel, 848 F.2d 1068 (lOth 

Cir. 1988) ("State law has defined R.S. 2477 grants since the 

statute's inception."); Central Pac. R. Co. v. Alameda County, 52 

S.Ct. 225 (1932) (road was established "under and in accordance 

with state law."); Homer D. Meeds, 26 IBLA 292 (1976) (" [I]n order 

that a road become a public highway, [it is necessary] that it be 

established in accordance with the law of the state in which it 

is located."). I am submitting to you in writing a small 

sampling of the numerous federal and state decisions which have 

confirmed the central role of state law in interpreting R.S. 2477 

and would request that they be attached to my comments in the 

record. These requirements are consistent with the regulations 

which have applied to R.S. 2477: 

No application should be filed under R.S. 2477, as no 

action on the part of the Government is necessary. (43 

C.F.R. § 2822.1-1 (1972 & 74) & 43 C.F.R. § 244.58(a) 

(1963); see also 43 C.F.R. § 244.55 (1939) .) 

Grants of rights-of-way referred to in the preceding 

section becoate effective upon the construction or 

establishment of highways, in accordance with the State 

laws, over public lands, not reserved for public uses. 

(43 C.F.R. § 2822.2-1 (1972 & 74) & 43 C.F.R. § 

244.58(a) (1963); see also 43 C.F.R. § 244.55 (1939) .) 

5 
74 

It would be unjust to now choose to dishonor those regulations, as the Department of Interior now attempts to do. 

Section 2(b) (2) provides that the provisions of section 4 

apply to rights-of-way recognized by the Secretary. As explained 

below, those provisions require the Secretary to record the 

validity of the right-of-way and manage the federal lands subject 

to the right-of-way. 

Section 2(b) (3) provides that the Secretary shall specify 

the factual and legal basis for an objection to a right-of-way. 

Because federal land managers are generally familiar with the 

rights-of-way which traverse the lands they manage and because 

the main repository of information regarding many rights-of-way 

will be the records of the land managing agencies, most 

rights-of-way should be addressed with minimal effort on the part 

of the agency. In many instances, specification of the grounds 

for the Secretary's objection should serve to expedite the 

resolution process. If the agency possesses information unknown 

to the party filing notice which implicates validity of the 

right-of-way, it would always be possible to withdraw that 

right-of-way from the notice. Alternatively, the party filing 

notice might spot ways to readily resolve the Secretary's 

concerns, in which case the objection could be withdrawn. 

Section 2(b) (4) provides that a right- of-way will be deemed 

valid as claimed if the Secretary fails to object to notice of a right-of-way within two years. This provision is necessary to ensure that the settlement process moves along. Without such a provision, the purpose of the Act would be defeated. The 

Secretary would be allowed to indefinitely delay resolution of 

rights-of-way. Given the current policies of the Department of 

Interior refusing to acknowledge any R.S. 2477 right-of-way, 

regardless of prior recognition or other undisputed basis for its 

validity, the closure provided by this provision is essential. 

~ SECTION 3 

Section 3 

right-of-way. 

the Secretary, 

Secretary. 

addresses judicial review of objections to a With respect to any right-of-way objected to by 

the burden for quieting title rests with the 

Section 3(a) gives the Secretary two years to bring an action to quiet title after objecting to the right-of-way. As 

section 3(c) specifies, failure to bring such an action within 

two years results in a legal determination that the right-of-way 

is valid as claimed. As explained above, imposition of a time 

period is necessary to move the process along and ensure that the 

goals of the Act are accomplished. The two-year time period is 

ample time to bring a suit to quiet title. The factual and legal 

basis for such suit should have been assembled previously when 

6 
75 

objecting to the right-of-way. Thus, in practical effect, the 

Secretary has four years to prepare a quiet title action from the 

time notice is first submitted. 

section 3(b) provides that the Secretary bears the burden of 

proof on all issues regarding objection to a right-of-way. This 

is proper where the Secretary is acting to change the status quo, 

namely eliminating rights-of-way used by the American public. 

Also, the federal land manager will possess most of the documents 

that would be germane to validity. Furthermore, because the 

federal government specifically discouraged creation of records 

regarding acceptance of the grant, it would now be unfair to 

place the burden of proof on parties who relied on such 

regulations. 

Section 3(d) limits standing to parties that have a legitimate claim of property interest in the right-of-way, such as states, counties and other holders. This provision will 

further the Act's goal of expeditiously settling title to R.S. 

2477 rights-of-way. Because the Act addresses property 

interests, under standard principles of law, the only parties 

with legitimate interests are the holders of the dominant and 

servient estates. Since at least one of these parties, and most 

often both, will be governmental entities representing the 

public, the public's interests will be well represented in any 

hearing. 

~ SECTION 4 

Section 4 specifies that rights-of-way deemed to be accepted 

according to the provisions of the Act are valid. While the Act as a whole operates as an administrative program, not intended to 

diminish valid existing property rights, there can be no reason to leave the validity of rights-of-way in doubt after the parties 

with the relevant property interests have resolved the question. 

Validity must be appropriately recorded on land records and maps. 

Proper recordation will prevent many of the problems of 

uncertainty that have necessitated this Act. 

Section 4 also specifies that the valid rights-of-way must 

be legally respected by the federal land manager. Validity of a right-of-way denotes legally protected property rights that 

cannot be infringed upon by the owner of the servient estate. 

~ SECTION 5 

Section S(a) specifies that the administrative remedies 

provided by this Act do not affect existing judicial quiet title 

remedies. This Act merely provides an alternative manner of 

quieting title to R.S. 2477 rights-of-way. 

7 
76 

Section S(b) provides that failure to file notice does not cause rights-of-way to be relinquished. This provision merely 

states the law as it stands. These rights, where taey are val id, 

vested as property rights prior to the repeal of R.S. 2477 on October 21, 1976. They cannot now be taken by any administrative 

action, whether directed by Congress or otherwise, without due 

process. This clarification of the law is necessary in light of 

the limited resources of local governmental entities and the 

rural nature of much of the land where these rights-of-way are located. Given the recent 6fforta ay the Department of Interioc 

to redefine these rights-of-way in a way that would work a de 

facto divestment of the rights, this provision provides a salutary recognition of fundamental legal principles. 

Furthermore, the Act creates an alternative to quieting title, 

not a substitute for it. Should a holder decide, for example, to 

pursue judicial procedures instead of filing a notice ia the 

administrative process created by this Act, the holder cannot be 

punished with a determination that the right-of-way is 

relinquished. 

Section S(c) ratifies consistent and long-standing judicial 

precedent and the prior regulations specifying that state law 

controls R.S. 2477. 

Section S(d) specifies that NEPA does not apply to actions 

taken pursuant to this Act. The Act does not constitute action 

by any party. Rather, the Act establishes a method for 

recognizing the legal significance of past actions. 

Section S(e) prohibits the Secretary from closing public access routes predating FLPMA without providing notice to the 

relevant political entities. This provision recognizes that road 

closures can impose tremendous difficulties on local ~overnments 

and rural citizens. Before such difficulties are imposed, where 

the public has been using such routeE 19 years ~ more, notice 

should be provided. Of course, the Secretary does aot have the 

legal power to close a valid R.S. 2477 right-of-way, even with 

notice. 

Additionally, road closures are impermissible if such 

closure would leave non-federal lands with no access. Realizing 

the practical realities of securing additional methods of access across federal lands and the financial burdens associated with 

building new roads, this Act d~clares that non-federal lands may 

not be cut- off throu9h elimination of the sole route of access. 

~ COHCLUSIQN 

The Act establishes a system for recognizing valid rightsof-way created by R.S. 2477, providing a proper basis for land 

management actions. The Act honors precedent establisned by 

8 
T7 

numerous judicial and administrative interpretations of R.S. 

2477. The Act supersedes efforts by the Department of Interior 

to rewrite this precedent in an effort to eliminate valid 

existing rights which have vested in the American public. 

The citizens of rural areas and the local governments who 

represent them have created these public access routes over time, 

often through gre~t effort and hardship under challenging 

conditions. These rights-of-way exist because they are important 

to the people who created them. Current policies and actions of 

the Department of Interior have created unnecessary burdens on the exercise of these rights which do not truly benefit the 

American people, the environment or the federal agency in 

question. These policies have resulted in excessive 

intermeddling by federal agents in the day to day management of 

public rights-of-way in the rural West. These public 

rights-of-way should be managed by the state and local 

governments which have traditionally exercised jurisdiction over them. This Act would reassert the appropriate status of these 

R.S. 2477 rights-of-way to the benefit of the American people. 

9 
78 

SETTLED PRECEDENT ON R.S. 2477 

Revised Statutes 2477 (R.S. 2477) states, in its entirety: 

"Sec. 8. And be it fUrther enacted, That the right of 

way for the construction of highways over public 

lands, not reserved for public uses, is hereby 

granted." § 8 of the Act of July 26, 1866, 14 Stat. 

253, later codified at 43 U.S.C. § 932. 

This statute has been interpreted innumerable times over the 128 

years since its passage by state and federal courts and by the Department of 

Interior and these interpretations have consistently outlined fundamental 

core principles which have guided its application over the years. In 

particular, the statute has been applied universally by reference to state law. 

Furthermore, the definitions under state law of terms such as "highway" and 

"construction" have always been honored. The new regulations proposed by 

the Department of Interior do not provide a fair treatment of this legal 

history and the definitions which were relied upon for the 110 years that the 

offer under R.S. 2477 was open. The following outline provides just a few 

quotations from the vast body of administrative and court-made law which 

the new regulations attempt to ignore and thereby reverse. 

I. THE ROLE OF STATE LAW: 

Early federal regulations stated: 

This grant [RS. 2477] becomes effective upon the 

construction or establishing of highways, in accordance 

with the State laws, over public lands not reserved for 

public uses. No application should be filed under this 

act, as no action on the part of the Federal 

Government is necessary. 56 J.D. 533 (May 28, 1938). 

These regulations were retained. virtually unchanged, for 110 years: 

No application should be filed under R.S. 2477, as no 

action on the part of the Government is necessary. . . . 

Grants of rights-of-way referred to in the preceding 

section become effective upon the construction or 
79 

establishment of highways, in accordance with the 

State laws, over public lands, not reserved for public 

uses. 43 C.F.R. §§ 2822.1-1, 2822.2-1 (October 1, 

1974)(See also, 43 C.F.R 244.54 (1938); 43 C.F.R. 

244.58 (1963). 

In 1986, the Department recognized its duty to honor prior. valid 

existing rights: 

A right-of-way issued on or before October 21, 1976, 

pursuant to then existing statutory authority is covered 

by the provisions of this part unless administration 

under this part diminishes or reduces any rights 

conferred by the grant or the statute under which it was 

issued, in which event the provisions of the grant or the 

then existing statute shall apply. 43 U.S. C. § 2801.4 

(February 25, 1986). 

Supplementary information supplied by the Department stated: 

It was not the intent of the proposed rulemaking, nor is 

it the intent of this final rulemaking, to diminish or 

reduce the rights conferred by a right-of-way granted 

prior to October 21, 1976 . ... In addition, if questions 

should arise regarding the rights of a right-ofway 

holder under a grant or statute, the earlier editions of 

the Code of Federal Regulations on rights-of-way will 

remain available to assist in interpretation of the rights 

conferred by the grant or earlier statute . ... In carrying 

out the Department's management responsibilities, the 

authorized officer will be careful to avoid any action 

that will diminish or reduce the rights conferred under 

a right-ofway grant issued prior to October 21, 1976. 

51 Fed.Reg. 6542 (February 25, 1976). 

The Department also recognized the role of state law when making 

representations to the courts: 

2 
80 

The parties are in agreement that the right of way 

statute is applied by reference to state law to determine 

when the offer of grant has been accepted by the 

"construction of highways. Wilkenson v. Dept. of 

Interior of United States. 634 F.Supp. 1265, 1272 (D. 

Colo. 1986) (citation omitted). 

The Department's own appellate bodies also recognized the propriety 

of the application of state law: 

The question of whether a road is a public highway is 

a matter of state law. The Sierra Club et al.. 104 

IBLA 17, 19 (1988). 

State courts have also been consistent in their treatment of R.S. 2477 

rights-of-way: 

Under this act [RS. 2477} highways could be 

established over public lands not reserved for public 

uses while they remained in the ownership of the 

government. Congress did not specify or limit the 

methods to be followed in the establishment of such 

highways. It was necessary, therefore, in order that a 

road should become a public highway, that it be 

established in accordance with the laws of the state in 

which it was located. Ball v. Stephens, 158 P.2d 207, 

209 (Cal. Ct. App. 1945). 

It has been held by numerous courts that the grant 

[under R.S. 2477} may be accepted by public use 

without formal action by public authorities, and that 

continued use of the road by the public for such length 

of time and under such circumstances as to clearly 

indicate an intention on the part of the public to 

accept the grant is sufficient. Lindsay Land & 

Livestock v. Chumos. 285 P. 646, 648 (Utah, !930). 

By this act [RS. 2477} the government consented that 

any of its lands not reserved for a public purpose might 

3 
81 

l!le taken and used for public roads. The statute was a 

standing offer of a free rights of way over the public 

domain, and as soon as it was accepted in an 

appropriate manner by the agents of the public, or the 

public itself, a highway was established. Streeter v. 

Stalnaker, 61 Neb. 205, 85 N. W. 47, 48 (1901). 

Federal courts have concurred: 

The salient issue is whether the scope of RS. 2477 

rights-of-way is a question of state or federal law. . . . 

Especially when an agency has followed a notorious, 

consistent, and long-standing interpretation, it may be 

presumed that Congress' silence denotes acquiescence: 

"[Gjovemment is a practical affair, intended for 

practical men. Both officers, lawmakers, and citizens 

naturally adjust themselves to any long-continued 

action of the Executive Department, on the 

presumption that unauthorized acts would not have 

been llflowed to be so aften repeated as to crystallize 

into a regular practice. That presumption is not 

reasoning in a circle, but the basis of a wise and 

quieting rule thai, in delennining the meaning of a 

statute or the existence of a power, weight shall be 

given to the usage itself, --even when the validity of the 

practice is the subject of investigation." United States v. 

Midwest Oil Co., 236 U.S. 459, 472-73, 35 S.Ct. 309, 

312- 13, 59 L.Ed. 673 (1915) .. .. The peifection of an 

RS. 2477 right-of-way admittedly is a different issue 

{from] its scope. However, all of the above-cited cases 

concern the conflict between an alleged RS. 2477 

right-ofway and a competing claim of right to the 

land. The cases subsume the question of scope into 

the question of peifecti.on; and indeed a critical part of 

many of the state law definitions of peifection included 

the precise path of the pwported roadway. Having 

considered the arguments of all parties, we conclude 

that the weight of federal regulations, state court 

precedent, and tacit congressional acquiescence 

4 
82 

compels the use of state law to define the scope of an 

R.S. 2477 right-ofway. Sierra Club v. Hodel 848 F.2d 

at 1080, 1083. (Citations omitted.) 

*** 

Ordinarily, this expression of intent [by the state 

legislature J would constitute valid acceptance of the 

right·ofway granted in Section 932. That section acts 

as a present grant which takes effect as soon as it is 

accepted by the State . ... All that is needed for 

acceptance is some ''positive act on the part of the 

appropriate public authorities of the state, clearly 

manifesting an intention to accept . . . . " Wilderness 

Society v. Morton, 479 F.2d 842, 882 (D.C. Cir. 1973), 

(quoting Hamerly v. Denton. Alaska, 359 P.2d 121, 

123 (1961); citing also Kirk v. Schultz, 63 Idaho 278, 

282, 119 P.2d 266, 268 (1941); Koloen v. Pilot Mound 

Township. 33 N.D. 529, 539, 157 N. W: 672, 675 

(1916); Streeter v. Stalnaker, 61 Neb. 205, 206, 85 

N.W 47, 48 (1901)). 

"Under R.S. 2477, a right-of-way could be established by public use under 

tenns provided by state law." Sierra Club v. Hodel, 675 F.Supp. at 604. 

"Whether the roads have been established under the provisions of RS. 

2477 is a question of New Mexico law." U.S. v. Jenks, 804 F.Supp. 232, 

235 (D.N.M. 1992). "Whether a right of way has been established is a 

question of state law." Shultz v. Department of Army. U.S., 10 F.3d at 

655. 

II. STATEMENTS OF THE 10TH CIRCUIT COURT OF APPEALS ON 

THE IMPORTANCE OF STATE LAW 

The United States Circuit Court of Appeals for the 1Oth Circuit, commenting 

on "more than four decades of agency precedent, subsequent BLM policy as expressed 

in the BLM Manual, and over a century of state court jurisprudence" on this issue: 

5 
83 

The adoption of a federal definition of R.S. 2477 roads 

would have very little practical value to BLM. State law has 

defined R.S. 2477 grants since the statute's inception. A 

new federal standard would necessitate the remeasurement 

and redemarcation of thousands of R.S. 2477 rights-of-way 

across the country, an administrative duststorm that would 

choke BLM's ability to manage the public lands • • • . That 

a change to a federal standard woald adversely affect 

existing property relationships squarely refutes Sierra Club's 

allegation that the use of a state law standard unfairly 

prejudices the federal government. R.S. 2477 righthalders, 

on the one hand, and private landowners and BLM as 

custodian of the public lands, on the other, have developed 

property relationships around each particular state's 

definition of the scope of an R.S. 2477 road. The 

replacement of existing standards with an "actual 

construction" federal definition would disturb the 

expectations of all parties to these property relationships. 

Sierra Club v. Hodel. 848 F.2d at 1082-1083. 

*** 

FLPMA admittedly embodies a congressional intent to 

centralize and systematize the management of public lands, 

a goal which might be advanced by establishing uniform 

sources and rules of law for rights-of-way in public lands. 

The policies supporting FLPMA, however, simply are not 

relevant to R.S. 2477's construction. It is incongruous to 

determine the source of interpretative law for one statute 

based on the goals and policies of a separate statute 

conceived 110 years later. Rather, the need for uniformity 

should be assessed in terms of Congress' intent at the time 

of R.S. 2477's passage. I d. 

Ill. CONCRESSIONAL INTENT IN PASSINC FLPMA 

Debate leading up to the enactment of FLPMA, on a pr!ildecessor bill, 

addressed R.S. 2477 specifically. This bill contained the same terms which 

were later Incorporated Into FLPMA, providing that "All actions by the 

secretary under this Act shall be subject to valid existing rights· and 

providing for the repeal of R.S. 2477. 

6 
senator stevens, of Alaska, etepressed concern that rights to "de facto 

public roads" established across public lands and roads "that tnrowgh 

tradition, through usage, through the passage fJf time, in fact, have become 

public access roads or highways· would be jeopardized by U1e repeal of 

R.S. 2477. 120 cong. Rec. 22283·22284 11974t. senator Haskell, of Colorado, 

speaking in favor of th€ legislation (S·42tll, stated: "If a 9trip of land Is being 

used for a highway over public land in accordance with Statt law at the time 

Of enactment of this IJI/1, then that grant of rtght-of·WIY is preserved by 

reason of section 502 of the bitt. • JQ. at 22284. 

There can be no questiOn that congress Intended, when It passed 

FLPMA, that R.S. 2477 rights-of-way be Interpreted in accordance wfth state 

law. In an attempt to ·make sufficient legiSlative history,· senator Haskell 

referred specifically to state case law, stating: 

1 am referring now, if the Senator would like, the 

citation Is Kotoen versus Pilot Mound Township, 1 

believe it is, 53 North Dakota 529, It says: 

To constitute acceptance of 

congr8ssional grant of rlght·of·way for 

highways across public lands there must 

be either user sufficient ttl establish a 

highway under the taws fJf the State, CJr 

some l)ositlve act proper authorities 

manifesting intent to accept. 

In other words, a use or some POSitive act of proper 

authorities manifesting Intent to u6t. This Is the way 

1 would apply this one-sentence statute lR.S. 24771 

enacted in 1866: either there is a an actual existing 

public use, or there is a manifest intent which could 

be put into action by an appliCation to the 

Department of the Interior, and they would say "yes.· 

In other words, it Is a two-way proposition. J.Q. 

It Is also clear that it was an essential condition of tne BLM ·organic 

act" that the full rights under R.S. 2477, as well as other rights, were to be 

preserved. senator Haskell, in support of the predecess0r bill, said "I would 

like to take this opportunity to reassure the various users of the natural 

resources lands ·· and these people Include thOse who graze cattle, It 

includes pooplewho mine, it includes tJeOP/e who use public lands for 

recreation .. that none of their rights or privileges are being adversely 

affected." !Q. at :l2280. 

It is also clear that congress understood that R.$. 2477 rights·of-wav 

would not be limited to "significant" roads: 

7 
85 

MR. STEVENS. would the senator from Colorado agree 

that if a State has accepted an obligation to maintain 

a road or trail, if it has partially constructed or 

reconstructed it, or has indicated an exercise of its 

police authority by virtue of posting signs as to the 

speed limits, for example, which demonstrate it is a 

public highway -if the state has taken actions that 

would normally be taken by a State in furtherance of 

its normal highway program, and those roads were 

on such a right-of-way public lands, would the 

senator agree that we have no Intent of wiping 

those out, but those would be valid, existing rights 

under the one-sentence statute the Senator 

mentioned previously? 

MR. HASKELL. 1 agree with the senator 100 percent. 

!.Q.. at 22284. 

Furthermore, in response to a concern about "existing roads and trails 

from village to village" and about "dogsled traf/s," senator Haskell stated: 

1 am not familiar with dogsled trails, but let me say 1 

agree with the senator that so long as the intent was 

for public use, then the right-of-way was established 

at that time under that 1866 act. !Q. 

A review of that debate can leave no doubt that congress intended 

R.S. 2477 rights to be exercised fully In accordance with state law after the 

passage of the BLM "organic act." 

IV. FLPMA EXPLICITLY PROTECTS PRIOR VALID EXISTING 

RIGHTS 

Nothing in this Act, or in any amendment made by this Act, 

shall be construed as terminating any valid lease, permit, patent, 

right-of-way, or other land use right or authorization existing on 

the date of approval of this act. FLPMA § 701(a), 43 U.S.C. § 

1701 note (a). 

All actions by the Secretary concerned under this Act shall be 

subject to valid existing rights. FLPMA § 701(h), 43 U.S.C. § 

1701 note (h). 

8 
86 

Nothing in this title (43 U.S.C. §§ 1761 et seq.J shall have the 

effect of terminating any right-of-way or right-of-use heretofore 

issued, granted or permitted. FLPMA § 509(a), 43 U.S.C. § 

1769(a). 

V. DEFINITIONS OF "HIGHWAY" AND "CONSTRUCTION" 

In Colorado, the term 'highways' includes footpaths. Simon v. 

Pettit, 651 P.2d 418, 419 (Colo.Ct.App. 1982), affd, 687 P.2d 

1299 (Colo.l984). "Highways" under 43 U.S.C. § 932 can also 

be roads "formed by the passage of wagons, etc., over the 

natural soil." Central Pacific Railway Co. v. Alameda County, 284 

U.S. 463, 467, 52 S.Ct. 225, 226, 76 LEd. 402 (1932). The trails 

and wagon roads over the lands which became part of the 

Colorado National Monument were sufficient to be "highways" 

under 43 U.S.C. § 932 [R.S. 2477]. Wilkenson v. Dept. of 

Interior of United States, 634 F.Supp. at 1272. 

"The term highway is the generic name for all kinds of public 

ways, whether they be carriage-ways, bridle-ways, footways, 

bridges, turnpike roads, railroads, canals, ferries, or navigable 

rivers." Bouv. Law Diet., Rowle's Third Rev. p. 1438, Tit. 

Highway; Elliott, Roads and Streets, p. 1; 25 Am.Jur, 340. 

Parsons v. Wright, 27 S.E.2d 534 (N.C. 1943) 

A highway is commonly defined as a passage, road, or street 

which every citizen has a right to use. . . A highway includes 

every public thoroughfare, "whether it be by carriage way, a 

horse way, a foot way, or a navigable river." Summerhill v. 

Shannon, 361 S.W.2d 271 (Ark. 1962). 

"Roads" and "highways" are generic terms, embracing all kinds of 

public ways, such as county and township roads, streets, alleys, 

township and plank roads, turnpike or gravel roads, tramways, 

ferries, canals, navigable rivers . . . . Strange v. Board. of Com'rs 

of Grant County, 91 N.E. 42 (Ind. 1910). 

9 
87 

Highways, as they were originally developed, were for the 

convenience and easy passage of persons on foot, on horseback, 

in vehicles drawn by horses or oxen, and also for the 

transportation of commodities by the same means. They were 

open to unrestricted use by all persons. City of Rochester v. 

Falk, 9 N.Y.S.2d 343 (1939) 

The word "highway" as ordinarily used means a way over land 

open to the use of the general public without unreasonable 

distinction or discrimination, established in a mode provided by 

the laws of the state where located. Lovelace v. Hightower, 50 

N.M. 50, 168 P.2d 864 (1946). 

Travel and transportation of goods by wheeled vehicles is not 

the only use to which a highway may be put. One walking or 

riding horseback, or transporting goods by pack horse, over a 

way which the public is constantly using , is a use of such a way 

as a highway. Hamp v. Pend Oreille County, 172 P. 869, 870 

(Wash. 1918). 

"User is the requisite element, and it may be by any who have 

occasion to travel over public lands, and if the use be by only 

one, still it suffices." Wilkenson v. Dept. of Interior, 634 

F.Supp. 1265, 1272 (D. Colo. 1986). 

"Highways" under 43 U.S.C. §932 can also be roads "formed by 

the passage of wagons, etc., over the natural soil." Central 

Pacific Railway Co. v. Alameda County, 284 U.S. 463, 467, 52 

S.Ct. 225, 226, 76 L.Ed. 402 (1932). Id. 

10 
88 

R.S, 2477 HIGHWAYS IN OTAH 

PHOTOGRAPH INDEX 

1. Highway to Panguitch airport and former Garfield County 

landfill. 

2. Highway to Panguitch airport and former Garfield County 

landfill. 

3. Old Hatch Town Road. 

4. Bridge on Old Hatch Town Road. 

5. Road leading to Kodachrome Basin State Park. 

6. Bridge on Kodachrome Basin state Park Road. 

7. Road leading to Kodachrome Basin State Park. 

8. Road leading to Kodachrome Basin State Park. 

9. state Route 12 intersecting with State Route 63 and John's 

Valley Road, leading to Bryce Canyon National Park to right, 

Capitol Reef National Park straight ahead and 3 Utah state 

Parks straight ahead. 

10. state Route 12 at Red Canyon camp Ground, a u.s. Forest 

service facility. 

11. State Route 12 at u.s. 89 Junction. 

12. State Route 12 at u.s. 89 Junction. 
89 
-'" ~· ~C:-<!/ 

90 
91 
92 

National Parks 

and Conservation Association 

TESTIMONY PRESENTED BY 

ELIZABETII FAY AD 

COUNSEL 

NATIONAL PARKS AA'D CONSERVATION ASSOCIATION 

BEFORE TilE 

SUBCOMMITTEE ON NATIONAL PARKS, FORESTS, Al'i'D LAl'mS 

ON 

H.R. 2081 

July 27, 1995 

Mr. Chrurman and members of the subcommittee, my name is Elizabeth Fayad and I am 

Counsel for the National Parks and Conservation Association (NPCA). NPCA is America's 

only private nonprofit citizen organization dedicated solely to protecting, preserving, and 

enhancing the U.S. National Park System. NPCA has a long-standing interest in the issues 

surrounding R.S. 2477, and I welcome the opportunity to testify before you today. 

NPCA strongly opposes H.R. 2081. The "Revised Statutes 2477 Rights-of-Way Settlement 

Act" reflects a complete lack of concern for the preservation and management of our 

National Park System. This bill would give rights-of-way across national parks, set aside for 

the benefit of current and future generations, to virtually any person who merely asserts a 

claim for a right-of-way, without regard for the potential harm it could cause. This bill 

would sacritice national parks, an asset that belongs to all the citizens of the United States 

and a legacy for our children, for the benefll of a few. 

This bill would not only affect lands managed by the National Park Service but also lands 

managed by the Bureau of Land Management, the Fish and Wildlife Service, the Forest 

Service, and the Department of Defense, as well as lands owned by Native Americans and 

private individuals and businesses. H.R. 2081 does not take into consideration whether the 

lands through which the right-of-way passes are national parks, national monuments, wild 

and scenic rivers, wilderness areas or proposed wilderness areas, wildlife refuges, army 

bases, or private ranches. 

1776 Massachusens Avenue, N.W., Washington, D.C. 20036-1904 

Telephone (202) 223-NPCA(6722) • Fax (202) 659-0650 

o~·· .. rln 0 "' .,,,.(_,[!) ~~ 
93 

The title of the bill--the Revised Statutes 2477 Rights-of-Way Settlement Act--implies that 

this bill merely facilitates the settlement of existing claims and rights. If enacted, however, 

the bill would greatly expand entitlements to rights-of-way across public and private lands. 

The bill is inconsistent with the National Park Service Organic Act, the Federal Land Policy 

Management Act (FLPMA), the Alaska Native Interest Lands and Conservation Act, the 

Alaska Native Claims Settlement Act, and the Wilderness Act. 

R.S. 2477, a one-sentence provision in the Lode Mining Act of 1866, states, "The right-ofway for construction of highways over public lands, not reserved for public uses, is hereby 

granted." R.S. 2477 was repealed by FLPMA in 1976. There is no legislative history 

accompanying the provision, but the plain language of the statute would require the 

construction of a highway before 1976, when R.S. 2477 was repealed. The scope of the 

right-of-way would be what existed in 1976 or the date when the land was reserved. Yet, 

H.R. 2081 would validate rights-of..way without a showing of construction or an existing 

highway, as those terms are commonly understood. The bill allows state law to determine 

the scope of the right-of-way. 

While NPCA recognizes that there are valid rigllts-of-way under R.S. 2477, we also believe 

that certain standards of proof should be required before giving away valuable taxpayer 

property or damaging national parks and wilderness areas. This bill has no meaningful 

standards of proof requirements for the alleged holders of rights-of-way. The bill simply 

requires the recognition of the right-of-way upon the filing of a notice by an applicant which 

contains a map, a general description of the route, termini, and scope of the right-of-way, 

and the identification of the state or political subdivision through which the asserted right-ofway passes. 

After the applicant has made this minimal showing, the entire process is skewed toward 

recognition of the right-of-way: 

--the Secretary has two years to make any objections to the right-of-way; any 

objection must be accompanied by factual and legal justifications; if the Secretary fails to 

object, the right-of-way is deemed valid. 

--if the Secretary objects, the Secretary has two years to bring a quiet title action; in 

the quiet title action, the Secretary will bear the burden of proof on all issues; if the 

Secretary fails to bring the quiet title action within two years, the right-of-way is deemed 

valid. 

The recurring theme of these provisions is that the R.S. 2477 claims will either be valid or 

be deemed valid unless the Secretary takes extraordinary measures to defeat the claim. The 

beneficiary of the right-of~way merely files an application; then the whole burden shifts to 

the federal government, and the taxpayers who support it. 

I can think of no other scheme where the burden lies so heavily upon the federal government 

except in a criminal trial. Social security disability applicants have to provide much more 

2 
94 

evidence than an R.S. 2477 claimant. If social security benefits are denied, the burden of 

proof rests on the applicant on appeal. 

The bill also seeks to preclude public involvement in any processes associated with the 

determination of the validity of the asserted right-of-way across public lands. Standing to 

challenge a Secretary's action in court under the bill would be limited to parties with a 

property interest in the right-of-way or lands served by it. 

Further, H.R. 2081 exempts any actions to carry out its provisions from the requirements of 

the National Environmental Policy Act (NEPA). Wholesale exemptions from NEPA, which 

is designed to integrate the consideration of environmental consequences of an agency's 

action into the decision-making process, are not in the public interest. The NEPA exemption 

is another of the bill's facets designed to short-circuit the process and grant any asserted 

right-of-way--regardless of the environmental consequences. 

The bill seeks to expand the scope of valid R.S. 2477 rights-of-way by requiring state law to 

determine the scope. This provision appears to mean that a trail constructed through a 

national park could become a paved road if that would be the right-of-way's scope under 

state law. The public does not expect its national parks to be managed in this way. 

The implications of this bill for the National Park System are serious. For exampie, the 

State of Alaska contends that it has asserted R.S. 2477 c!aims for 1,700 roads and trails 

based on an atlas of trails. This atlas of trails includes 200 claims in 13 of 15 national park 

units located in Alaska, inciuding: 

+ 1!0 trails in Wrangell-St. Elias National Park and Preserve; 

+ 30 trails in Denali National Park and Preserve; 

+ 15 trails in Bering Land Bridge National Preserve; 

+ 10 trails in Yukon-Charley Rivers National Preserve; 

+ 7 trails in Gates of the Arctic National Park and Preserve; 

+ 6 trails in Glacier Bay National Park and Preserve. 

The National Park Service has described the potential impacts of these R.S. 2477 claims as 

"devastating" and stated: 

"Possible R.S. 2477 rights-of-way identified by the 1974 trail atlas cross many miles 

of undeveloped fish and wildlife habitat, historical and archaeological resources, and 

sensitive coastlines and wetlands. Eleven of the Alaska national park units are 

bisected by possible R.S. 2477 rights-of-way some of which are over 100 miles long. 

Validation of possible R.S. 2477 rights-of-way in Alaska national park areas would 

derogate unit values and seriously impair the ability of the NPS to manage units for 

the purposes for which they were established." 

3 
95 

The impacts on other land managers and owners could also be significant if this bill passes. 

For example, many private property owners who acquired their land from the public domain 

will be subject to claims for R.S. 2477 rights-of-way. Indeed, many state law cases 

interpreting R.S. 2477 involve claims brought by local government entities to impose R.S. 

2477 rights-of-way on privately held lands over the objection of their owners. 

The Department of the Interior has an ongoing rule-making proceeding that could result in 

reasonable regulations governing claims under R.S. 2477. The Department has received 

extensive public comment on its proposed rules and is in the process of considering the 

comments. This effort should not be short-circuited by legislation. 

Claimants deserve careful consideration of their claims. Likewise the public deserves to 

have its interests fairly represented and protected. H.R. 2081 would short-change the public 

for the benefit of a few claimants. The public deserves better treatment from those elected to 

represent them. 

4 
96 

BEFORE THE 

UNITED STATES HOUSE OF REPRESENTATIVES 

SUBCOMMITTEE ON 

NATIONAL PARKS, FORESTS AND PUBLIC LANDS 

TESTIMONY.OF 

THE SIERRA CLUB and THE SOUTHERN UTAH WILDERNESS ALLIANCE 

ON H.R. 2081, 

THE "REVISED STATUTES 2477 RIGHTS-OF-WAY SETTLEMENT ACT" 

Introduction. 

Mr. chairman, members of the subcommittee, my name is Scott Groene. 

I am a staff attorney with the Southern Utah Wilderness Alliance in 

Cedar City, Utah. I am testifying on behalf of the Sierra Club and 

the Southern Utah Wilderness Alliance. 

HR 2081 would breath new life into RS 2477, a cryptic statute over 

a century old that was repealed nearly two decades ago. RS 2477 

embodied the policies of a pioneer nation that sought to dispose of 

public land. To bring this moldy law back is to doom our public 

lands to out-dated thinking and to ignore current law, public 

sentiment and scientific knowledge. 

Photographs of Asserted RS 2477 Rights-of-Ways. 

Included with copies of my testimony are photographs which show 

examples of Utah county RS 2477 assertions. I ask that these 

photographs be made part of the record of this hearing. I request 

that a letter from the Utah Wilderness Coalition which both 

identifies the locations of the photographs and explains a utah 

citizens project to document RS 2477 assertions in our state, be 

made part of the record as well. 

The photographs labeled one through six show areas where counties 

have claimed the existence of RS 2477 roads within the Utah 

Citizens BLM wilderness proposal, which has been incorporated by 

Representative Maurice Hinchey in HR 1500. Photographs seven through ten show areas with RS 2477 assertions that are also within 

the wilderness boundaries drawn by the Utah delegation in a proposal introduced as H.R. 1745. As the photos indicate, in some cases these roads were built decades ago to temporarily access mining claims and have long since eroded away. In other instances, 

there never was a road. These are the types of claims HR 2081 

would legitimize. The result would be the loss of wilderness, 

polluted water, and fragmented wildlife habitat. 

Specific Provisions of the Bill 

The proposed legislation has little to do with preserving access 

via existing roads. Rather, it rolls back legal precedent to 

create a thirty-two cent postage stamp property claim give-a-way 
97 

Page 2 

Testimony on H.R. 2081 

Sierra ClUb\Southern Utah Wilderness Alliance 

for those who seek to undermine wilderness protection. It allows 

such attacks on our National Parks, National Forests, wilderness, 

wildlife, and water until past the year 2015. In contrast, the 

united states is given only two years to defend against thousands 

of anticipated claims, and then is handed the burden of proving 

forty year old facts. Public lands can be lost by default if the 

United States is· overwhelmed and unable to bring all claims to 

court. The public is prohibited from challenging federal agency 

decisions which approve frivolous right-of-way claims. The bill 

exempts these decisions from the National Environmental Policy Act. 

This legislation, if passed, would waste the United State's 

resources in a likely futile effort to fight off dubious property 

claims. HR 2081 allows anyone with a stamp and a grudge against 

wilderness to force the federal government into an expensive court 

battle. 

This bill allows both state government and private individuals to 

make frivolous claims. County officials in Utah have already shown a willingness to claim RS 2477 right-of-ways (ROWs) which cannot be 

driven by a four wheel drive vehicle, or for routes that cannot be 

found on the ground. Nor are claims limited to state entiti es. Section 2(a) of the bill also allows anyone with an undefined 

interest in land to file an easement claim against the federal 

government. By merely filing a mining claim, an individual could 

be entitled to make an RS 2477 ROW claim. Section 2(a) does not even require that RS 2477 claimants snow they use asserted routes, 

only that they "could." 

Off road vehicle advocates have already published information as to 

how RS 2477 claims can be filed. This bill will encourage more 

such abuses of the process. 

The bill allows claims to be made without investment of time or money. Pursuant to section 2(a) of this bill, those who seek to 

interfere with federal land management can do so with little more than scribbling a line across a map. 

HR 2081 also opens the door for nuisance claims for. decades to come. In 1976, Congress repealed RS 2477, and proponents of new RS 

2477 ROWs have had nearly two decades to file claims. Normally 

federal land managers, and the public, can rely on the federal 

twelve year statute of limitations to provide the certainty that 

stale property. claims will not interfere with public land 

management. This bill overrides the existing statute of 

limitations to allow the RS 2477 issue to fester for another two 

decades, some 40 years after the legislation was repealed. 
98 

Page 3 

Testimony on H.R. 2081 

Sierra Club\Southern Utah Wilderness Alliance 

Claimants are granted yet another 10 years to file claims, under 

section 2(a). If the Secretary finds that the claims are fraudulent,. then the claimants are granted another 12 years to 

challenge that determination in court, under section 5(a)(l). 

States and the public have been on notice for more than 12 years 

that areas have been reserved as National Parks, National Forests, 

and Wilderness Study Areas on BLM land. In some cases, roads have 

been closed for decades. HR :2081 allows proponents to now re- litigate those ROW issues long after the facts have grown stale, 

and management practices have been established. 

The effect is these claims will not be resolved with certainty 

until forty years after RS 2477 was repealed. Further, because of 

the waiver of the statute of limitations, the Department of the 

Interior may face claims for long-gone jeep trails in National 

Parks that have not seen vehicle use for decades. 

While HR 2081 on the one hand encourages frivolous claims, on the 

9ther it ensures the United States will not be able to defend. 

against these claims. For the generosity provided to claimants 

that have sat on claims for decades is not granted the federal 

government. If this legislation passes, it is likely the United 

States will be faced with thousands of these claims. Under HR 

2081, the affected agencies will have only two years to adjudicate 

these claims. If the agency is able to administratively respond to 

the numbers of claims, it must then bring a federal court action, 

in the form of a quiet title action, again within two years, under 

section 3. The United States would be unable to staff this level 

of litigation. Frivolous claims will no doubt slip through. 

HR 2081 would force the Unit.ed States to expend millions of dollars 

to battle nuisance claims. The Department of the Interior has 

estimated it costs from one-thousand to five-thousand dollars to 

administratively adjudicate one of these claims. There are 5000 

claims pending in the state of Utah alone. The costs would be much 

higher under HR 2081, because the United States would be required 

to litigate these claims in addition to making administrative 

determinations. 

Litigation costs will also be increased because HR 2081 rolls back 

established legal precedent by forcing the United States to bear 

the burden of proof. This legislation requires the United states 

to disprove claims, regardless of how frivolous they may be. The 

United States will have the burden of showing that the affected 

state has not accepted or established a ROW, although the state may 

not be a party to the litigation and it is unclear how the federal 

government would secure this information. 
99 

Page 4 

restimony on H.R. 2081 

sierra Club\Southern Utah Wilderness Alliance 

The legislation also creates the unfathomable scenario where the 

government defaults property rights to federal lands if the 

Secretary cannot process all claims within two years or file 

litigation within two years. This is likely to happen if funding 

is not been provided for this purpose or due to an overload of the 

system. Then the publ ic will lose property rights in public lands 

by default, pursuant to section (b)(4) of this bill. It appears 

the legislation is written with the intent this would happen. For 

while claimants are given up to four decades after RS 2477 was repealed to file a quiet title action, the United States is given 

two years on a schedule driven by the counties to challenge those 

claims. 

The existing 12 year statute of limitations serves a purpose beyond 

providing certainty. With the passage of time, it becomes more difficult to determine the facts. But here proponents of ROWs may 

have until after the year 2015 to file a quiet title action. Then, 

because of the shift of burden of proof, the federal government 

must prove facts that may or may not have existed as of 1976. The 

combination of shifted burden of proof and waiving the statute of 

limitation will mean the United States will likely lose to ROW 

claims with little merit. 

The legislation allows state law to control both the grant and 

scope of these easements over public land, although the original RS 

2377 legislation made no mention of state control. Although most 

states do not have legislation that will answer these issues, some states will allow the mere passage of vehicles to constitute a 

constructed public highway. Other states declare that section 

lines on maps are constructed highways. There is no rational basis 

to allow the confusion of varying state standards to undermine 

public lands. States should be allowed to limit the terms of 

accepting the grant of ROWs, in order to protect against liability 

claims or maintenance costs. But the existence and scope of ROWs 

should be established by federal law. 

This bill prohibits most of the public from challenging federal 

agency decisions. HR 2081 limits standing i n federal court to 

those .who claim ROWs. Those who may be harmed by a Secretarial 

decision. to approve a fraudulent claim will not be allowed to 

challenge the federal government. 

The bill also exempts these decisions from the National 

Environmental Policy Act. Current lOth Circuit law binding in 

Utah found NEPA applies to RS 2477 claims in order that the BLM may 

meet its duty to protect public lands from undue and unnecessary 

degradation. HR 2081 eliminates this case law. 
100 

Page 5 

Testimony on H.R. 2081 

Sierra Club\Southern Utah Wilderness Alliance 

Provision S(e) of this bill prohibits the National Park Service, 

National Forest Service and the BLM from closing asserted RS 2477 

ROWs for one year after a state is notified of the intended 

closure. In other words, dirt bike riders can claim a ROW and rip over archaeological sites, through trout streams, across critical 

soils and among National Park visitors, and the United States can not stop them for a year. Emery county in Utah claimed under RS 

2477 that it could expand an existing road without conducting NEPA 

studies and damaged an archeological site in the process. They 

were stopped from doing more damage by federal court litigation. 

Under this bill they could have continued to bull doze through 

thousand year-old Indian ruins without restraint. 

HR 2081 ignores the compromises Congress reached in the Federal 

Land Policy Management Act. At the same time FLPMA repealed RS 

2477, subject to prior existing rights, Congress wrote section 603 

which set up the BLM wilderness study process. FLPMA's legislative 

history makes clear that Congress intended that the BLM would find an area roadless, in order to qualify as a wilderness study area, 

if there were no constructed roads. Jeep tracks or ways are not 

roads, according to congressional intent. Precepts of determining 

legislative intent require that we assume Congress acted 

consistently- that is that Congress grandfathered existing RS 2477 

roads which are limited to real, mechanically constructed roads. 

Otherwise we would have the unacceptable situation of Congress on the one hand declaring that we could have RS 24 77 roads in the 

forms of ways within section 603 roadless areas. Let us give 

Congress more credit than that. 

Nor does the bill address RS 2477 ROWs across private lands that 

have been acquired from the public domain. Under H .R. 2081, 

private landowners may not be able to defend their property against 

RS 24 77 claims, even though the landowner purchased the land 

decades ago. 
101 

.. ftJIIJ!f!t.tJII.ikhiSI:t-tW*i·*~'ilii.i!- The FounJationfor the Utah Wildc-nw•~ Collliti<.m ... PO" Box S20974,Salt L;.keCity, lltah &H52-0974 ,. Phone8014B6-2872 • Fns &:11467-<:!2% 

July 2!, 1995 

Re: County R.S. 2477 claims 

To whom it may concern: 

During the Governor's hearings on Utah wilderness in the spring of 1995, counties in 

Utah made claims for the existence of roads which many citizens consider unlikely. As a result, 

numerous volunteers participated in a systematic, coordinated effort during April, May and June 

of 1995 to photograph and document the routes of alleged roads claimed by counties under R.S. 

2477. In addition, this effort included "roads" shown on maps obtained from, and apparently 

prepared by, Congressman Orton's office. 

During the course of the road inventory, the volunteers took hundreds of photographs, 

documenting the condition of dozens of alleged roads. In numerous instances, the "roads" did 

not meet or even approach an ordinary person's common-sense definition of a road. Many were 

undriveable. Many were less noticeable than the maintained footpaths which are often present 

in designated wilderness areas. Some were literally impossible to find on the ground. 

Some of the counties' R.S. 2477 claims are valid. However, from having helped with 

the volunteer review and from having looked at numerous maps and photographs taken by other 

volunteers, my own conviction is that many of the counties' road claims are highly exaggerated 

and many are entirely fictitious. 

Attached to this letter are photographs of several examples of claimed county roads, or 

roads shown as such on Congressman Orton's maps. Their locations are as follows: 

Photo No. 1: "Road" near Famswonh Wash, Emery County. (Photo by Will McCarviJL) 

Photo No. 2: Kayaker paddling along Muddy Creek "road", Emery County. (Photo by 

Amy O'Connor.) 

Photo No. 3: Valley in Wi/4 Horse Mesa, Emery County. Although most roads are more 

easily seen from above, the "road" along this valley cannot be seen at all in this 

photograph taken from a nearby hillside. (Photo provided by Will McCarvill and Bryan 

Larsen.) 

Photo No. 4: "Road" in Nonh Fork tff Coal Wash, Emery County. (Photo provided by 

Stephanie Edgar and Ed MerrilL) 
102 

Photo No. 5: "Road" near Cistern Canyon, Emery County. (Photo by Bruce Howlett,) 

Photo No. 6: "Road" in Sheep Creek, Kane County. (Photo by Gordon Swenson.) 

Photos Nos. 7, 8, 9: Waterfall, narrows awl footpath along "road" through The Gulch, 

Garfield County. The waterfall is only a foot or two wide. The narrows is only four 

feet wide in places. ln order to drive down The Gulch, a vehicle would have to make 

it down the waterfall and through the narrows. By way of comparison. Photo No. 9 

shows the most "driveable" part of The Gulch, which is obviously only a footpath. 

(Photos by Gordon Swenson.) 

Photo No. 10: Angel Trail near Dirty Devil River, Wayne County. (Photo by Gordon 

Swenson.) 

As these examples clearly show, many of the counties' road claims are entirely 

unfounded. Congress should postpone any attempt to resolve the R.S. 2477 issue until the 

counties have demonstrated that their information is reliable. 

Attachments 

Sincerely, 

GORDON 

~~ J. SWENSON 

Assistant Coordinator. 

UWC "Adopt-A-Wilderness" Program 
103 

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August 10, 1995 

The Honorable James Hansen 

Committee on Resources 

Subcommittee on National Parks. Forests & Lands 

U.S. House of Representatives 

Washington, DC 20515 

Dear Chairman Hansen and Members of the Committee: 

The National Water Resources Association is pleased to have the 

opportunity to provide comments for inclusion in the testimony 

record of July 27, 1995 to the Committee regarding the validity of 

federal rights-of-way granted under Revised Statute 2477. 

NWRA is a non-profit federation representing both agriculture and 

municipal reclamation water users in the 17 western states. Our 

membership includes companies and associations as well as 

farmers and other individuals. NWRA is the oldest and most active 

national association concerned with the appropriate and efficient 

management and development, and its strength is a reflection of 

the tremendous "grass roots" participation it has generated on 

virtually every national issue affecting western water conservation, 

management, and development. 

The majority of water resource facilities used by our members are 

located on public land throughout the western United States. Much 

of the access to those properties were established on roads which 

fall under Revised Statute 2477 and are grandfathered into the 

Federal Land Policy and Management Act. 

As Congress and the Department of Interior consider newly 

proposed regulations for claims under RS 2477, NWRA members 

have reason for concern regarding the access to water resource 

facilities that, in some cases, can only be reached on these roads. If 

access on these roads is: denied. vital operations and maintenance 
109 

Committee on Resources 

Subcommittee on National Parks, Forests & Lands 

August 10, 1995 

Page 2 

that must be performed on these facilities will be greatly 

hampered in a tangle of unnecessary bureaucratic red tape. 

Furthermore, there is great concern among NWRA members that 

the government, by gaining more ownership and limiting public 

access, will follow an increasingly common tendency to use its 

regulatory authority under FLPMA to place onerous federal 

conditions on the renewal of special use authorizations for existing 

water supply facilities. As water users in Colorado have already 

discovered, the Forest Service has required in some instances that 

vested-rights-of-way or easements across federal lands for water 

supply facilities be abandoned as a condition of the issuance or 

renewal of a special use permit. This increasingly dangerous trend 

cannot be continued in other western states and must be reversed 

where it has already occurred. 

We applaud Congressman Hansen's efforts to introduce H.R. 208 I 

and to bring this issue forward for discussion by holding hearings 

on this very timely subject. We believe that the current proposed 

regulations by the Department of Interior are unwise and will 

promote confusion and years of litigation. We urge that these 

proposed regulations not be implemented, and that Congress 

thoroughly explore opportunities for a rational resolution of this 

difficult issue. 

NWRA stands ready to offer additional input on resolution of this 

matter with regard to access to water resource facilities. If we can 

provide assistance to the committee as this matter is further 

discussed, please to not hesitate to call upon us. 

sin;;)rely, 

Director. 

!~~ Government 

0 
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