Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers of Interest
Released: 2003-11-07T00:00:00

Introduction

A succinct provision in an 1866 statute known as "R.S. 2477" granted rights of way acrossunreserved federal public lands:

And be it further enacted, That the right of way for theconstruction of highways over public lands, not reserved for public uses, is hereby granted. (1)

This provision was repealed in 1976 by the Federal Land Policy and Management Act(FLPMA), an act that also protected valid rights of way established by that time. What definitions,criteria, and law should be applied to confirm or validate the existence of these pre-1976 R.S. 2477rights of way has been controversial for over a decade. The issues are important to states andcommunities whose highway systems are affected. Also, the rights of way may run either throughundeveloped federal lands that might otherwise qualify for wilderness designation or across landsthat are now private or within federal reserves (such as parks or national forests) created after thehighways might have been established.

Many such rights of way have not been controversial because their construction andacceptance as highways was clear. Other asserted rights of way are controversial either because theirtimely completion is not clear, the standards by which their validity should be determined aredebatable, or because of the location of the asserted rights of way. The potential impacts of claimedR.S. 2477 rights of way on the management of federal and non-federal lands and on state roadsystems could be significant. (2) Validated roads could continue across private lands as well,possibly to the surprise of current landowners. (3) Still other rights of way may threaten water quality if they passthrough critical watersheds. (4) On the other hand, others assert that motorized access to the federallands, which comprise about 44 percent of Utah, is important for ranching, recreation, mining, andother economic activities deemed vital to rural Utah and that the roadways will promote economicprosperity generally. (5) Incommenting on a bill in the 104th Congress that would have legislated a validation process verydifferent from that proposed in regulations, Sen. Hatch stated:

[T]his matter is critical to communities and citizens inthe rural West. In many cases, these roads are the only routes to farms and ranches; they providenecessary access for schoolbuses, emergency vehicles, and mail delivery. The Interior Departmentregulations would significantly confound transportation in the Western States, jeopardizing thelivelihoods of many citizens and possibly their health and safety as well. (6)

On January 6, 2003 the Department of the Interior published new final regulations on"disclaimers of interest." (7) A disclaimer is a recordable document in which the United States declares that it does not have aproperty interest or interests in lands. The issuance of a disclaimer can help remove a cloud fromland title because it has the same effect as though the United States had conveyed any interest it has. On April 9, 2003, the Department of the Interior and Utah entered into a Memorandum ofUnderstanding (MOU) to establish a process to acknowledge as valid certain R.S. 2477 highwayrights of way within that state and to disclaim the interest of the United States in valid rights of way. Apparently, this means that the United States would disclaim its interest in the highway easement,but not title to the underlying lands.

The new disclaimer regulations were issued under Â§ 315 of the Federal Land Policy andManagement Act of 1976 (FLPMA), (8) one part of which authorizes the issuance of disclaimers if aninterest or interests of the United States in lands has "terminated by operation of law or is otherwiseinvalid." The amended disclaimer regulations at 43 C.F.R. Part 1860, Subpart 1864, allow states,state political subdivisions, and others to apply for disclaimers of interest by the United States,regardless of whether they are the property owner of record, as was required by the previousregulations. The amended regulations provide exceptions to the 12-year statute of limitations thatapplied to all applications under the previous regulations and that would also apply to all plaintiffs,except states, if they were to pursue claims in court under the Quiet Title Act.

Some comments on the proposed changes to the disclaimer regulations expressed concernthat disclaimers would be used to confirm many more R.S. 2477 rights of way through thatmeans. (9) The explanatorymaterials accompanying the final regulations state that "[a] significant number of comments askedabout the relationship between the proposed rule and R.S. 2477," and conclude that Â§ 315disclaimers are appropriate in the R.S. 2477 context if their issuance would help remove a cloud onthe title to lands or interests in lands arising from unrecorded rights of way. (10)

The explanatory materials go on to discuss that the rule does not provide standards forrecognizing, managing, or validating R.S. 2477 rights of way and therefore do not violate Â§ 108 of P.L. 104-208 , which prohibited rules "pertaining" to recognition of R.S. 2477 rights of way. (11) By what process R.S. 2477rights of way will be validated and by applying what criteria are controversial issues. For years,property disputes involving claims to federal lands were resolved by the Congress in individuallegislation or by the courts under the Quiet Title Act. Disclaimers have been used when there is nodispute that the United States does not own a property. The issuance of disclaimers spares partiesthe time and expense of going to court under the Quiet Title Act. However, given the significantissues over what law applies to R.S. 2477 rights of way and what constitutes lawful R.S. 2477validity criteria, use of disclaimers as part of a process for validating such rights of way withoutcongressional or judicial guidance on how such claims should be evaluated and resolved maygenerate further controversy. The Administration asserts that disclaimers will only be used inreference to "obvious" R.S. 2477 claims (12) or claims that "satisfy the statutory requirement of 'construction'and 'highway' under almost any interpretation of those statutory terms." (13) However, as will bediscussed, some of the terms of the Utah MOU may be controversial -- e.g. it expressly equates"highway" with "road," possibly broadening the rights of way that may qualify by eliminating onedebatable element of the 1866 grant from consideration.

The possible relationship between the new disclaimer regulations and R.S. 2477determinations is important because Congress in Â§ 108 of P.L. 104-208 stated that no rules"pertaining to" recognition or validity of R.S. 2477 rights of way could be effective unless authorizedby Congress. Explanatory materials published with the amended disclaimer rules assert that theissuance of federal disclaimers is completely separate from determining the validity of claims ofhighway rights of way under R.S. 2477. But, apparently, disclaimers could be an essential part ofa new process for finalizing claims found to be valid through application of a variety ofadministrative standards. The MOU with Utah establishes an "acknowledgment process" wherebyR.S. 2477 rights of way claimed by that State can be validated and disclaimers to the rights of wayissued by the United States. Some counties in Utah and one county in California, and the states ofAlaska, Colorado, Idaho, Oregon, have indicated interest in developing separate MOUs regardingR.S. 2477 rights of way, and other states may follow. (14) Any additional MOUs may or may not be similar to that withUtah. (15) Whether thispotential for disparate approaches to validating R.S. 2477 rights of way comports with the policiesset out in FLPMA to retain the remaining public lands and to establish uniform procedures for themanagement and disposal of the public lands (16) raises other issues. Additional questions may arise even if allvalidation agreements prove to be uniform.

Neither the Utah MOU nor the supplemental BLM guidance for implementing it sets out thecriteria that will be used by the United States to determine the validity of asserted R.S. 2477 claims. The articulation of criteria and the definitions of key terms are central issues that have generatedcontroversy in the past. For many years as the West was being settled, there was little attention paidby the United States to R.S. 2477 grants. Meanwhile, state courts applying state laws establishedtheir own standards by which to judge whether a grant had been accepted by each state for publicmaintenance and liability. In some instances, state law or judicial interpretation went beyonddetermining when a right of way was accepted by a state or county for those purposes to alsoarticulating what constituted "construction" or a "highway" for purposes of determining when thefederal grant was completed However, these cases typically did not involve the federal governmentas a party, and after the repeal of the 1866 Act in 1976, attention was increasingly focused on theelements of the federal grant: the "construction" of "highways" over "public lands" "not reserved"-- as matters of federal law.

Congress has addressed the R.S. 2477 controversy several times. In 1991 the House passedH.R. 1906, a bill that would have imposed a cutoff date for claims and specified how theDepartment of Interior was to process them, but no Senate action was taken. Then, in conferencereport language on P.L. 102-381 , Congress deleted a prohibition on using funds to process R.S. 2477rights of way in favor of directing the Department to prepare a report on R.S. 2477, and to developvalidity criteria that are "consonant with the intent of Congress both in enacting R.S. 2477 andFLPMA, which mandated policies of retention and efficient management of the public lands." (17) The Department's reportwas completed in June, 1993. One of the recommendations in the report was that regulations bepromulgated to establish a single uniform system for validating R.S. 2477 claims, and SecretaryBabbitt proposed such regulations in 1994. (18) However, these proposed regulations were controversial (19) and elicited congressionalprohibitions against new regulations. (20) These were followed by the prohibition in Â§ 108 of P.L. 104-208 (an appropriations act), against rules "pertaining to" R.S. 2477 becoming effective until approvedby Congress. (21) Similarlanguage had been proposed for the Interior Appropriations Act for FY1998 ( P.L. 105-83 ), but wasdeleted in reliance on an Opinion of the Comptroller General that Â§ 108 was permanent law. (22)

Several bills addressing R.S. 2477 were introduced in 1995 and 1996, including S. 1425 , which would have put the burden of disproving validity of claims on theUnited States and directed that determinations be made by applying state law. Many opposed theseprovisions too, and no position garnered sufficient support to enact a bill. As part of the compromisein the 104th Congress, the Administration pledged to send a legislative proposal to the Hill, and aproposal was sent in August of 1997, but no legislation based on it was introduced.

On January 22, 1997, Secretary Babbitt revoked a 1988 Policy on R.S. 2477 and put in placean interim policy that directed that R.S. 2477 determinations be postponed unless necessitated bycompelling circumstances, thereby giving Congress more time to resolve the issues. Language wasadded to the FY1997 Supplemental Appropriation bill to nullify the 1997 policy and to again requirethat state law be used in evaluating R.S. 2477 claims; however, this language was eliminated afterthe bill was vetoed. Since that time very few administrative determinations have been completed,and disputed claims have been addressed in the courts under the Quiet Title Act. Now, with the UtahMOU as precedent, new administrative "acknowledgment processes" could use the amendeddisclaimer regulations to validate R.S. 2477 rights of way under as- yet-unstated criteria.

R.S. 2477 issues may be suitable for resolution by Congress because so many interests couldbe affected, and because the law and standards that should be applied are debatable. H.R.1639 in the 108th Congress, again proposes a legislated system for evaluating anddetermining claims, and defines crucial terms. In addition, the House approved an amendment tothe FY2004 DOI Appropriations bill (H.R. 2691), that would have prohibitedimplementation of the amendments to the disclaimer regulations in National Monuments, WildernessStudy Areas, or units of the National Park System, National Wildlife Refuge System, or the NationalWilderness Preservation System. This language was adopted instead of a more general prohibitionon implementation. The Senate bill, as reported, did not contain a provision on disclaimers and theprovision was eliminated in conference. If there is no legislated resolution of R.S. 2477 issues, thecourts will continue to consider disputed claims as they arise, and use of the newacknowledgment/disclaimer process may also be challenged.

This report discusses the disclaimer provision of FLPMA, the recent amendments to thedisclaimer regulations, and the Utah MOU. It also provides background on the R.S. 2477 grant toconstruct highways, administrative and judicial interpretation of it, and several questions involvingits interpretation that are not settled. The relationship of the amended disclaimer regulations to thatstatute and to the prohibition against rules that "pertain to" R.S. 2477 is also discussed. Finally, H.R.1639 and other actions in the current Congress also are discussed. This report will beupdated as circumstances warrant; see CRS Report for Congress RS21402: Federal Lands,"Disclaimers of Interest," and R.S. 2477 , for a discussion of recent events.

Section 315 Disclaimers

Section 315 and Regulations

Section 315 of FLPMA authorizes the Secretary of the Interior to use disclaimers in certaincircumstances, and reads in part:

After consulting with any affected Federalagency, the Secretary is authorized to issue a document of disclaimer of interest or interests in anylands in any form suitable for recordation, where the disclaimer will help remove a cloud on the titleof such lands and where he determines (1) a record interest of the United States in lands hasterminated by operation of law or is otherwise invalid; or .... (23)

When a party formally disclaims an interest in real property, the result is to help clear titleto the property interest that is the subject of the disclaimer. Section 315(c) states that a recordablefederal disclaimer of interest has an effect equivalent to a quitclaim deed. (24) A part of the regulationsthat was not amended adds that although a disclaimer does not actually convey title (25) (presumably because thedisclaimer indicates there is no title interest of the United States to be conveyed), a disclaimer mayestop the United States from later asserting a claim to the lands. Unchanged regulations also statethat the purpose of the procedure is to eliminate the necessity for court action or private legislationin certain circumstances, including when there is a cloud on the title to the lands that is attributableto the United States :

The purpose of a disclaimer is to eliminate the necessityfor court action or private legislation in those instances where the United States asserts no ownershipor record interest, based upon a determination by the Secretary of the Interior that there is a cloudon the title to the lands, attributable to the United States, and that: (1) A record interest of the United States in lands has terminated by operation of lawor is otherwise invalid; or ... [additional language reflecting the Â§ 315 language ondisclaimers involving submerged lands]. (26)

These provisions of the disclaimer regulations were not changed. However, the formerregulations limited those who could apply to use the procedure to "any present owner ofrecord," (27) a limitationthat does not appear in the statute or in the amended regulations. Further, the previous regulationsrequired denial of an application for a disclaimer if more than 12 years had elapsed since the ownerknew or should have known of the alleged claim attributed to the United States. (28) The amended regulationsallow any entity to file an application for a disclaimer, and also provide that although most applicantsmust file within 12 years, this time limitation does not apply to states. (29) The explanatory materialsindicate that this is to make the Â§315 regulations consistent with the Quiet Title Act (QTA). As willbe discussed, the QTA is the exclusive vehicle for resolving title disputes with the United States. It contains a 12-year statute of limitations, but "states," as narrowly interpreted in the QTA context,are excepted from the limitation. The new regulations add a broader definition of "state" thatincludes states in the narrow sense, and also political subdivisions of a state, "any of its creations,"and "other official local governmental entities." (30) This language is not elaborated on, but appears to include anyindependent commission or body a state (or even possibly a county) might create. (31) Because all those who fitwithin this definition of "state" are exempted from the 12-year statute of limitations under the newdisclaimer regulations, these provisions may allow many governmental entities that would have beenprecluded previously from seeking an administrative disclaimer and who are also currently precludedfrom initiating a QTA action in court to now seek an administrative disclaimer.

Although there is no legal requirement that a Â§ 315 administrative disclaimer process parallelthe QTA, the amended regulations purport to reflect and be consistent with the QTA. (32) If the Â§ 315 disclaimerprocess is viewed as completely separate from the QTA, expanding those who are not time-barredfrom requesting a disclaimer could be beneficial because disclaimers are to be used in situationswhere the United States has no interest in a property, and hence provides a means of clearing upunnecessary clouds on title without the time and expense of judicial suits under the QTA. However,neither Congress nor the courts have definitively clarified the criteria and law for determiningwhether and when an interest of the United States in a right of way might have "terminated or isotherwise invalid" within the meaning of Â§ 315. Disclaiming R.S. 2477 claims, therefore, may besubject to challenge in some circumstances, unless criteria and standards are clarified.

Legislative History of Â§315 Disclaimers

The legislative history of FLPMA sheds little light on the intended uses and scope of Â§ 315. FLPMA is a complicated and detailed statute that developed over several years to consolidate andmodernize the statutes governing the remaining public domain lands managed by the Bureau of LandManagement, and to establish express policies for their management. One policy expressly urgesthe retention of the remaining public domain lands and another expressly requires "uniformprocedures" for any disposal of public land. (33)

In the 94th Congress, which enacted FLPMA, Â§212 of the Senate bill, S. 501, andprevious House bills (34) authorized disclaimers only if the title of the United States had terminated "by operation of law"--the section lacked the additional language "or is otherwise invalid." The Senate report indicates thatthe Secretary is to be given new authority to issue a document "showing that the United States hasno interest in certain lands" that would have the legal effect of a quitclaim deed, and that this would"eliminate the necessity for court action or private relief legislation in those cases where the UnitedStates asserts no ownership or interest and would thus result in a saving of time and money for boththe Government and private parties." (35) Section 208 of the House bill, H.R. 13777, containedthe "or is otherwise invalid" language and also the express language on disclaimers having the effectof a quitclaim deed, but there was no elaboration in the report on the additions, (36) and no explanation as towhy the broader House language ultimately passed. (37)

The amendments to the disclaimer regulations broaden the circumstances in whichdisclaimers may be used. Some expansion might be warranted by practicalities -- e.g. someinstances might involve parties who are not the title holder of record (for example, if there were amistaken survey that erroneously showed the United States to hold title to a strip of land). But werethere any implicit limits on how disclaimers could be used? In interpreting R.S. 2477, a court mightlook to the plain meaning of that statute, or, if ambiguities are perceived, and in the absence ofclarification by Congress, a court might look to other provisions and to the history of title disputes.

Quiet Title Act

Historically, it was difficult to correct title problems involving the United States. The UnitedStates, as the federal sovereign, is immune from suit, except to the extent it may waive its sovereignimmunity, and one cannot "adversely possess" property against the United States and thereby obtaintitle. Typically, special acts of Congress were used to clear up title problems. (38) Some lawsuits attemptedto avoid the sovereign immunity problem by suing an officer of the United States, rather than theUnited States itself. These "officer suits" were eliminated by the enactment of the Quiet Title Act(QTA) in 1972, (39) which the Supreme Court has held to be the exclusive means by which adverse claimants canchallenge the United States' title to real property in court and controverted title claims can beresolved. (40) There hasalways been a tension between the enabling of suits to clear up title problems on the one hand andthe cabining of those suits in order to maintain parameters on the waiver of sovereign immunity onthe other hand. As a result, the Supreme Court has said that waiver of sovereign immunity in theQTA is to be construed narrowly in favor of the United States. (41)

Except as to states, the QTA bars suits not filed within 12 years of the time an action accrues,and an action is deemed to have accrued on the date a plaintiff "knew or should have known of theclaim of the United States." (42) The Block case held that states were subject to the statutory12-year limitation on bringing suits under the QTA, but in 1986 Congress subsequently provided thatstates are not generally subject to that limitation (though in some circumstances they are). (43) Recent cases have heldthat the exception for states is to be interpreted narrowly, such that counties and other subdivisionsof a state may not avail themselves of this exception to the QTA. (44) The new disclaimerregulations contrast with the QTA in this regard by including a broad new definition of "state" thatincludes many entities that would be time-barred from contesting title under the QTA and wouldhave been time-barred from seeking disclaimers under the previous regulations. The administrativedisclaimer process and its regulations are separate from judicial QTA actions, but, as will bediscussed, the new disclaimer regulations purport to be consistent with the QTA, yet differsignificantly in this crucial respect.

The Ninth Circuit has held that two conditions must exist before a district court can exercisejurisdiction over an action under the QTA: (1) the United States must claim an interest in theproperty at issue (and it need not necessarily be adverse to the interest asserted by the plaintiff); and(2) there must be a disputed title to real property. In the R.S. 2477 context, even if the United Statesconceded the validity of a right of way, the United States would retain an interest in the property --at least the servient estate over which the easement runs. (45) In the same litigation, the Ninth Circuit also held that a thirdparty may claim a title interest on behalf of the United States so long as that claim results in a cloudon the title of the plaintiff. (46) However, if the United States disclaims the contested interest,that is likely to end the suit under the QTA.

The QTA was enacted before FLPMA, but also refers to disclaimers. The statute providesthat in a QTA lawsuit, the United States may disclaim all interest in the "real property or interesttherein" at any time prior to the actual commencement of the trial regarding the property in questionand if that disclaimer is confirmed by order of the court, further jurisdiction of the court over the titledispute ceases unless there is an independent ground for jurisdiction. (47) There are few casesinvolving QTA disclaimers, but they indicate that usually confirmation of a disclaimer by a court isa "formality." (48) However, some cases have indicated that a court might refuse to confirm a disclaimer of interest insome circumstances, e.g. if a disclaimer was not made in good faith. (49)

The relationship of the filing of a disclaimer by the United States in a QTA suit to otherpossible grounds for action against the United States is not clear, but a disclaimer may not bedispositive of other causes of action even if it may terminate the QTA suit. (50)

How courts might view the use of Â§ 315 disclaimers as part of an administrative process forvalidating R.S. 2477 rights of way is difficult to predict, and whether and on what grounds a courtmight scrutinize a disclaimer issued under Â§315 are issues beyond the scope of this report.

Discussion

Many states enacted laws that required counties to determine which roads (includinghighways that were constructed on unreserved federal lands) were accepted for public use andmaintenance (and liability). (51) Therefore, the status of many roads was clear well before the1976 repeal of R.S. 2477. The status of others might not be as clear. "Roadless" reviews and otheractions may have begun the 12-year statute of limitations period under the QTA and the previousdisclaimer regulations, such that more than 12 years have now passed. (See the section of this reporton statute of limitations issues.) If so, the amendments to the disclaimer regulations, by exceptingstates from the statute of limitations and broadly defining "state," could work a significant changewith respect to the ability of counties and governmental entities to raise R.S. 2477 claims -- enablingthose claimants to now pursue claims administratively in instances where they would not have beenable to do so before the amendments.

The original Â§ 315 regulations reflect some of the elements of the QTA (see, e.g. , thereferences to security interests, water rights, or Indian lands that are not in FLPMA, but are inQTA (52) ), and thematerials accompanying the new regulatory changes refer to making the FLPMA disclaimersconsistent with the QTA. As discussed, the original regulations barred all claims brought 12 yearsafter the claims had accrued. The amended regulations broaden those who can apply for FLPMAdisclaimers and avoid the 12-year limitation -- significant departures from the QTA. The new Â§ 315regulations establish a new administrative forum for establishing R.S. 2477 rights -- a forum thatneed not parallel the QTA, but which may be controversial, both because the standards that will orshould govern the determination of the validity of such claims are unclear (and therefore whetherthe United States does or does not have an interest in a particular right of way is unclear), andbecause the consequences of recognition of R.S. 2477 claims can be so significant to the surroundingfederal lands and communities.

Other issues may also be raised. Section 315 authorizes disclaimers of the "record title" ofthe United States in the property being disclaimed, and it can be asked what the "record title" of theUnited States is in the context of R.S. 2477 disclaimers. For most of the West, it appears that therecord title of the United States would be the title to the public domain lands obtained by the UnitedStates through relevant treaties. That title would appear to consist of all the property rightsencompassed in full fee title. Other questions are -- given that the record title of the United Statesusually is full fee title -- whether less than a full title interest may be disclaimed under Â§ 315 at all,and whether the rights of way under R.S. 2477 are such an interest.

Section 315 authorizes the Secretary to issue a "document of disclaimer of interest orinterests" in any "lands." As a general matter, "interest" could mean a general focus of humanattention, or it could be used to refer to a right, title, or legal share in real property. (53) From the rest of thesection, its purpose, and the references to recordation and to "record interest," it seems clear thatproperty interests are the subject of the section. Furthermore, by referring to disclaiming "an interestor interests," it appears that less than a full fee title can be disclaimed under Â§ 315 in appropriatecircumstances. For example, given the complex history of mineral reservations, the United Statesin some circumstances may wish to disclaim the mineral estate. (54) In addition, many statuteshave authorized the acquisition of, or grants or conveyances of various types of less-than-fee"interests" in lands, including rights of way or easements, and the reference in Â§ 315 to "an interestor interests in lands" seems to contemplate that the United States might, in suitable circumstances,disclaim these interests as well.

R.S. 2477 appears to grant an easement across the federal lands, and easements are arecognized property interest. (55) Considering that Â§ 315 states that "a record interest of the UnitedStates may be disclaimed if it has terminated by operation of law or is otherwise invalid," it may beargued that it is only easements to which the United States has a record interest that can bedisclaimed. For example, if the United States had at some time acquired an access easement acrossprivate lands for a particular use or purpose, but never in fact used it for that purpose, thereby raisingthe question of whether the easement had terminated, this could be characterized as a situation wherethere was a cloud on the title of the underlying land "attributable to the United States that adisclaimer of its record interest could help remove." (56)

In the context of R.S. 2477 rights of way, however, the "record title" of the United Statesappears to be the full fee interest obtained by the United States when it acquired the westernterritories. Therefore, if the United States were to disclaim an R.S. 2477 easement interest, theUnited States might be said to be disclaiming only one part of its record title (i.e. an interest) -- a partthat would have to be validated and surveyed in order to be described legally in order to be able todisclaim a recordable interest. It could be argued on the one hand that this is not the kind ofdisclaimer situation contemplated by Â§ 315 because the interest being disclaimed is not the "recordinterest" of the United States.

On the other hand, it could be argued that the traditional way of envisioning property rightsis to say that fee title is like a bundle of sticks, each of which represents some aspect of ownershipand enjoyment, some or all of which may be conveyed. In the context of R.S. 2477 rights of way,the United States granted away one of the sticks in the property bundle -- a highway easement-- a"dominant" interest to use the underlying federal lands for a highway right of way, and the UnitedStates retained the "servient" estate -- the rest of the bundle of sticks -- over which the right of waywould run. Under this line of argument, the United States would be disclaiming the easementinterest it previously granted.

No examples of either a disclaimer of an easement interest in general or of any disclaimersinvolving R.S. 2477 have been provided by the Department of the Interior. (57)

Section 315 states that disclaimers may be used when it will "help remove a cloud on thetitle" of lands where a record interest of the United States has terminated "by operation of law." Inthe R.S. 2477 context, the Congress enacted an offer of a grant, but in some instances whether as afactual matter (rather than by operation of law) the grant was adequately and lawfully accepted andcompleted is unclear. This may be viewed as a question of whether, based on actions taken byparties other than the United States (as opposed to those "attributable to the United States"), title everleft the United States -- a question that depends on both the facts of each case and on the criteriachosen to answer the question. If facts remain in dispute and the legal criteria applied are notclarified by rule-making, Congress, or the courts, some would argue that the QTA may be the moreappropriate vehicle.

Certain policies of FLPMA may also caution against the use of disclaimers in the R.S. 2477context at the current time. Congress itself has called attention to some of the FLPMA policyconcerns. When Congress directed DOI to submit a report to Congress on R.S. 2477 issues, thecommittee report directed that validity determinations were to be "consonant with the intent ofCongress both in enacting R.S. 2477 and FLPMA, which mandated policies of retention and efficientmanagement of the public lands."

One of the major policy changes of FLPMA was to put in place a policy of retention of theremaining federal lands, unless as a result of the planning processes it is determined that disposalof a particular parcel will serve the "national interest." (58) "Uniform procedures" for any disposal of public land also arerequired. (59) On the onehand, it could be argued that the issuance of a disclaimer is not a conveyance, that the R.S. 2477rights of way were "disposed of" long ago, and therefore , these FLPMA policies are not implicatedby disclaimers of any interest of the United States in the rights of way now. On the other hand, giventhe controversy surrounding the appropriate standards to be applied to validating such rights of way,some may advocate that a conservative interpretation of the use of Â§315 is appropriate. (60) FLPMA requires that "inadministering public land statutes and exercising discretionary authority granted by them," theSecretary is to "establish comprehensive rules and regulations after considering the views of thegeneral public ...." (61) The Secretary has not established such rules with respect to reviewing R.S. 2477 claims.

Regulations "Pertaining To" R.S. 2477

Congress has required that regulations "pertaining to" R.S. 2477 not be effective untilCongress has approved them. Section 108 of the 1997 Omnibus Appropriations Act, P.L. 104-208 states:

No final rule or regulation of any agency of the FederalGovernment pertaining to the recognition, management, or validity of a right-of-way pursuant toRevised Statute 2477 (43 U.S.C. 932) shall take effect unless expressly authorized by an Act ofCongress subsequent to the date of enactment of this Act. (62)

Similar statutory language was deleted from the Interior Appropriations Act for FY1998 inreliance on the assertion that the language in the 1997 Act was permanent law and hence anadditional enactment was unnecessary. (63) There have been no further statutory prohibitions since, and nofurther attempts at direct R.S. 2477 regulations.

Assuming that Â§ 108 is permanent law, a basic issue is whether the disclaimer regulationsare covered by Â§ 108 -- i.e. whether they "pertain to" R.S. 2477. The Department looks to thelegislative history of Â§ 108 to conclude that the Congress intended the Department to acknowledgerights of way:

Congress enacted section 108 to prevent the Departmentfrom promulgating final rules and regulations setting out specific standards for R.S. 2477rights-of-way. See H.R. Rep. No. 104-625, at 58 (1996). Instead, it appears that Congressitself wanted to enact legislation defining the key terms and scope of grants for R.S. 2477rights-of-way. The House Committee on Appropriations stated: [T]he public interest will be better served if these grants [for highwayrights-of-way across Federal land] to States and their politicalsubdivisions are not put in jeopardy by the Department pendingCongressional clarification of these issues. [Then] Section 109 doesnot limit the ability of the Department to acknowledge or deny thevalidity of claims under R.S. 2477 or limit the right of grantees tolitigate their claims in any court. Id. . (64)

The Â§ 108 statutory language sets up a situation where the Secretary is not to finalizeregulations establishing standards by which to validate R.S. 2477 claims, yet the report refers to theDepartment nonetheless being able to acknowledge or deny such claims, (65) an ambiguity that mightlead to challenges to any such validations or rejections.

In order to minimize R.S. 2477 determinations until Congress acted to clarify how such rightsof way were to be validated, the January 22, 1997 policy on R.S. 2477 instructed the BLM to deferprocessing R.S. 2477 claims except in cases where there is a "demonstrated, compelling, andimmediate need to make such determinations," and the Forest Service followed suit. This meant thatfew determinations would be made, pending congressional clarification, and disputes involving R.S.2477 rights of way were primarily to be determined by the courts.

The current Administration is taking a new approach that does not involve rulemaking to setout validity standards -- such rules could trigger the prohibition of Â§ 108 -- but is an approach thatalso could greatly expand the number of claims that may be validated. This approach will beimplemented through changes to the procedures for issuing disclaimers. As discussed, theDepartment seems to view Â§ 108 as aimed only at preventing rules that set out specific standards forR.S. 2477 rights of way, (66) and therefore as unrelated to disclaimer rule changes which mayor may not impact R.S. 2477 rights of way. However, the actual wording of Â§ 108 appears toprohibit all regulations that "pertain" to R.S. 2477. The materials explaining the proposed changesto the disclaimer regulations indicated that the disclaimers might be a part of a new agencyadjudication process to clear up R.S. 2477 claims, (67) and the Forest Service stated that the disclaimers could be usedfor R.S. 2477 rights of way determinations and that "[c]urrently there is no administrative processavailable for states or land management agencies like the Forest Service to resolve such title claims;the process is time consuming and requires expensive litigation in Federal Courts...." (68)

The Department reports there have been only 62 disclaimers issued under Â§ 315 since itsenactment in 1976, (69) and none involved a disclaimer of an easement or involved rights of way claims under R.S.2477. (70) However, asa result of the broad definition of "state" in the new disclaimer regulations, more claimants may nowbe able to avoid the 12-year limitation that appeared in the previous disclaimer regulations, whichcould result in many more applications for Â§ 315 disclaimers related to R.S. 2477 rights of way. Theexpansion of the meaning of "state" in the amended disclaimer regulations now allows counties andother entities to apply for disclaimers, even if they could not do so under the previous disclaimerregulations or the QTA. In commenting on the proposal, some counties indicated an awareness ofthe opportunity, objecting to the costs that might result from their expected "hundreds" of filingsthat could be involved in some counties. (71)

More recently, the Utah MOU expressly recognizes that additional agreements will becompleted with counties. (72) It is not clear whether the 1997 R.S. 2477 policy will beeliminated with respect to these counties, or what validation criteria will be used in implementingany future agreements. Other states have indicated that they will seek agreements, and whether theterms of those agreements and the criteria to be applied will differ from previous agreements is notknown. The policies of FLPMA contemplate uniformity and consistency with respect to themanagement of the federal public lands in general and with respect to disposal in particular and somemay argue that these policies weigh against having varied criteria for validating R.S. 2477 rights ofway.

In as much as the disclaimer regulations have been amended in a manner that appears toexpand the opportunity for those entities most likely to claim R.S. 2477 rights of way to do so, thatthe Utah MOU indicates that agreements will be negotiated with counties directly, and that there areindications that at least hundreds of claims are now likely to be filed, (73) it could be argued that thenew disclaimer regulations are intended to provide a means for claimants to assert R.S. 2477 claims,that they "pertain" to R.S. 2477, and therefore must be approved by Congress before becomingeffective.

The Department has asserted that interpreting P.L. 104-208 so as to prohibit the use ofdisclaimer regulations would partially repeal Â§ 310 of FLPMA (the rulemaking authority) and Â§ 315,and that repeals by implication are not favored by the courts. (74) However, it could beargued that a requirement by Congress that regulations on a particular subject must be approved byan act of Congress does not repeal the general rulemaking authority. And, assuming that certainamendments to Â§ 315 disclaimer regulations were found to be so tailored as to pertain primarily tothe R.S. 2477 context and therefore not effective without congressional approval, this would notnecessarily repeal the general authority to utilize disclaimers.

In sum, the new disclaimer regulations present at least two questions: 1) whether the ruleamendments, by significantly expanding the use of disclaimers to process R.S. 2477 rights of wayare a proper use of the Â§ 315 authority; and 2) assuming that the no-R.S. 2477-regulations languagein P.L. 104-208 is still in effect, whether the new changes to the disclaimer regulations "pertain to"recognition and validity of R.S. 2477 rights of way within the meaning of P.L. 104-208 , and,therefore, must be approved by Congress.

The Utah Memorandum of Understanding

The connection between the recent amendments to the disclaimer of interest regulations andR.S. 2477 rights of way has recently been clarified by the execution of a Memorandum ofUnderstanding (MOU) on April 9, 2003, between the Secretary of the Interior and the state of Utahto establish an "acknowledgment process" for recognizing some R.S. 2477 rights of way in that state. It is expressly stated in paragraph 4 of the MOU that the acknowledgment process that theDepartment "shall use" to acknowledge eligible roads is "FLPMA's recordable disclaimer of interestprocess." "The Utah State Director of the Bureau of Land Management will issue a recordabledisclaimer of interest if the requirements of the applicable statutes and regulations, and the terms ofthis MOU, have been satisfied."

The current MOU is to apply to only some of the many claims Utah may have. For example,the MOU precludes consideration of rights of way within congressionally designated WildernessAreas or Wilderness Study Areas designated on or before October 21, 1993, under Section 603 ofFLPMA (thereby facially eliminating any that might result from the wilderness reevaluationconducted by Secretary Babbitt); roads that lie within the boundaries of any unit of the National ParkSystem (although most national monuments are within the National Park System, the GrandStaircase-Escalante National Monument is not -- because it is managed by BLM, and hence it is notprotected from claims under the MOU); roads within a unit of the National Wildlife Refuge System;or roads administered by another agency unless that agency consents to the use of theAcknowledgment Process.

The MOU does not set out the criteria by which the validity of claimed rights of way will bedetermined. As discussed in connection with the analysis of Â§ 108 of P.L. 104-208 , supra , this maybe to comport with the desire of Congress to itself legislate regarding standards for validating R.S.2477 claims. However, the subtitle of the MOU refers to State and County "Road"Acknowledgment. The word "road" is footnoted as follows: "[F]or purposes of this MOU, the terms"A road" and "A highway" shall be deemed synonomous." (sic) The R.S. 2477 grant was for the"construction of highways across public lands not reserved." Arguably, the equating of highway androad in the title of the Utah MOU eliminates one major issue -- that the 1866 grant was for "highways" and not all "roads." There is no elaboration in the MOU on how "construction" or "notreserved" will be interpreted. It is stated that eligible roads are those: (1) that existed prior toenactment of FLPMA and which "are in use at the present time;" (2) identifiable by centerlinedescription or other appropriate legal description; (3) documented by information sufficient tosupport a conclusion that the road meets "the legal requirements of a right-of-way granted under R.S.2477;" and requires that (4) "the road was and continues to be public and capable of accommodatingautomobiles or trucks with four wheels and has been the subject of some type of periodicmaintenance."

Paragraph 7 states that the 1997 [Babbitt] policy is inapplicable to acknowledgment requestssubmitted in accordance with the MOU. This is presumably because that policy directed that R.S.2477 rights of way only be validated in compelling circumstances. The 1997 policy repealed anearlier 1988 (Hodel) policy. There is no clarification in the MOU as to whether the Department ispresuming that the 1988 policy will now guide these determinations in Utah, and therefore whetherthe 1988 definitions of construction and other elements will apply. Paragraph 7 states that otherstates and counties may wish to propose MOU's for consideration by the Department that are"generally consistent with the principles set out in this agreement." This raise the issue of whethercertain R.S. 2477 validity policies and criteria will apply in some states or counties as to someclaims, but not in others as additional states and counties negotiate various MOUs. Alaskareportedly has sought negotiations for an agreement (75) and other states may follow. It has been noted that the UtahMOU was negotiated and finalized without public participation, but it is unclear whether those thatmay follow will also be completed in this manner. If a closed and varied approach is taken withrespect to the new disclaimer process for R.S. 2477 claims, resulting agreements may be challengedas not comporting with the policies of FLPMA that establish uniform management for the publiclands and direct that the Secretary "in administering public land statutes and exercising discretionaryauthority granted by them ... establish comprehensive rules and regulations after considering theviews of the general public." (76)

In a recent letter responding to a question posed by the General Accounting Office as to whatadditional guidance for processing applications for R.S. 2477 disclaimers might be available, theDepartment responded that the June 25, 2003 memorandum from the Deputy Director of BLM tothe State Director of BLM in Utah was the only additional information expected to be issued. (77) The letter further statesthat the guidance implements BLM's authority under the disclaimer regulations and the MOU, wasnot subject to notice and comment rulemaking, and was not published in the Federal Register orelsewhere. The June 25, 2003 guidance summarizes some of the terms of the MOU and states that:"[t]hrough the MOU, Interior and the State have agreed to focus their limited resources onacknowledging these R.S. 2477 rights-of-way, that satisfy the statutory requirements of"construction" and "highway" under almost any interpretation of those statutory terms." However,as indicated above, there may be differences of opinion regarding essential elements.

The guidance sets out what should be in an application, including information demonstratingthat the claimed right of way existed prior to October 21, 1976, and that it was in use as of April 9,2003; and details as to appropriate description and location information. The application also shoulddescribe any "improvements such as bridges or culverts and other ancillary features existing as ofApril 9, 2003 ." (Emphasis added.) Why this is the relevant date to demonstrate whetherimprovements existed that might demonstrate "construction" of a highway, rather than October 21,1976 -- the date of statutory repeal of the grant -- is not explained. Examples of helpful informationmentioned in the guidance include: a narrative as to when the claimed right of way was constructedand supporting evidence; affidavits and/or other legally cognizable documents evidencing how theclaimed right of way was established, its history and usage; and historic maps and photographs ofthe claimed right of way (pre-October 21, 1976). There is no information as to what criteria BLMwill apply in evaluating this supporting evidence regarding adequacy of "construction."

Paragraph 5 of the MOU states that a disclaimed right of way will be of "a sufficient widthto allow the State or county to maintain the character, usage, and travel safety of the road existing at the date of this MOU ." The guidance indicates that a draft decision on an application will beprepared that will describe the right of way, including its width. "The width of the road asserted andthe width of the road disclaimed shall not exceed the width of ground disturbance that existed forthe road as of April 9, 2003 , the date of the MOU." In this context too, no explanation is given asto why the date of the MOU is used to determine the baseline width of the road, rather than October21, 1976.

Paragraph 6 of the MOU also states that "where the State or a county wishes to substantiallyalter a road that is subject to the Acknowledgment Process in a way that is outside the scope ofordinary maintenance, it will do so only after notifying BLM of its intentions and giving BLM anopportunity to determine that no permit or other authorization is required under federal law ...."

The June 25th guidance discusses the public notice of an application that will be required (notice is required under both the statute and the regulations), and states that only the applicant orclaimant has the right to appeal a decision to the Interior Board of Land Appeals, and that no otherform of appeal is available to other persons. This reflects the disclaimer regulations which requirepublication of notice when an application is filed for a disclaimer, (78) but include no requirementfor a comment period and allow only an applicant to appeal. (79) The June 25th guidancewith respect to the implementation of the Utah MOU clarifies that the BLM, in consultation with theapplicant, will review all timely comments received on a disclaimer application under that MOU anddocumentation will be placed in the case file responding to all "relevant, substantive issues" raisedby commenters.

The Utah MOU may raise many questions as to the interpretation of the R.S. 2477 grant. Ananalysis of the history of the R.S. 2477 grants, the elements of the grant, and their administrative andjudicial interpretation is essential to evaluating the Utah MOU and future actions of the Departmentregarding R.S. 2477.

R.S. 2477 Rights of Way

Background

R.S. 2477 rights of way are those obtained under an 1866 statute reenacted as Â§ 2477 of theRevised Statutes, an act that was later codified at 43 U.S.C. Â§ 932 until it was repealed by uncodifiedÂ§ 706 of FLPMA. The 1866 statutory language was succinct, stating simply:

And be it further enacted, That the right of way for theconstruction of highways over public lands, not reserved for public uses, is hereby granted. (80)

Section 701 of FLPMA provided that valid rights of way in existence at the time of repealin 1976 were to be recognized. (81) Similarly, section 509 of FLPMA states that nothing in Title Von rights of way "shall have the effect of terminating any right-of-way or right-of-use heretoforeissued, granted, or permitted." Therefore, R.S. 2477 rights of way that were valid on October 22,1976, the effective date of FLPMA and not abandoned thereafter, are protected. In most states it wasclear which highway beds were valid because there had been some form of acceptance process understate law (typically a system of county maintenance) that made the roadways identifiable. In a fewstates, however (notably Utah and Alaska), there was no clear system of acceptance or recordation,and the existence and maintenance of some highways as a factual matter also was not clear and, asa result, which roadbeds might still qualify under the 1866 law has been controversial. The questionis important because areas traversed by asserted R.S. 2477 highways may be disqualified fromconsideration for possible inclusion in the National Wilderness Preservation System, or might nowbe private lands, or lands in federal reserves (such as parks or national forests) created after theestablishment of the rights of way. The proper interpretation of "construction," "highway," and "notreserved" in the federal grant, and the appropriate scope of the role of state law also have beencontroversial.

The historical context of the R.S. 2477 highway grant sheds light on the purpose andimportance of the act in the settlement of the West. After the United States acquired the vastterritories west of the Mississippi, Congress debated how best to encourage settlement of the lands. Rapid settlement was considered desirable both to secure the new lands from foreign encroachmentand to speed the conveyance of lands from federal to state and private ownership in order to buildthe new nation. Although Congress enacted many piecemeal laws in furtherance of these goals, thewestward movement outpaced Congressional efforts at comprehensive legislation. As a result, manyexplorers, developers, and settlers were already on the western lands by the time the first nationalhomesteading and land laws were enacted. Comprehensive authority to manage the lands thatremained in federal ownership was not enacted until the 20th century.

Mineral development is an example of an area in which federal law was playing "catch up"with events. Private individuals and companies entered upon the federal public domain lands insearch of mineral wealth before there was legislated authorization to do so. Sometimes the influxof miners was quite significant, as when thousands of miners flocked to California after thediscovery of gold in 1849. Because in many areas even territorial governments had not yet beenestablished, claimants developed local rules and customs to govern the location (establishment) ofmining claims and priorities among themselves.

In the 1860's, Congress enacted several pieces of legislation that both legitimized existingoccupations of the federal lands and addressed their use prospectively. One of these was theHomestead Act of 1862, (82) which provided a system by which citizens could obtain title topublic lands for agricultural settlement purposes. The Mining Act of 1866 (83) provided an initial systemfor the recognition of mining claims and for obtaining title to the lands on which mining claims wereestablished. Section 8 of the Act provided for the granting of rights of way, later became section2477 of the Revised Statutes (R.S. 2477), and still later was codified as 43 U.S.C. Â§932 until itsrepeal in 1976 by Â§ 706 of FLPMA.

R.S. 2477 highway grants played an important role in the development of the West. Manystate and county roads in the West today originated as R.S. 2477 roads, and the validity of most ofthese roads was clearly established by 1976. However, it is essential to note that R.S. 2477 rightsof way are not now, nor were they ever, the only type of road or access allowed across federallands. (84) In anyparticular instance, a denial of a R.S. 2477 right of way is not dispositive of whether and how a roador other access was or may be recognized or permitted.

The next section of this report will examine the statute itself, the historical context in whichit was enacted, and proffer a possible interpretation.

1866 Act

It is a fundamental rule of statutory construction that every issue of statutory interpretationshould begin with a close textual examination, (85) and that the "plain meaning" of a provision must guide itsinterpretation. (86) Theprovision reads:

And be it further enacted, That the right of way for theconstruction of highways over public lands, not reserved for public uses, is herebygranted.

Succinct though the section is, it is clear that R.S. 2477 is a grant of a right of way for the"construction" of "highways" across public lands "not reserved." Several approaches to possiblemeanings of these terms will be discussed. Because the basic purpose of the grant -- for highways-- sheds light on what Congress might have meant by "construction," the term "highways" will beexamined first.

In many discussions of R.S. 2477 (and in the Utah MOU), there is a tendency for speakersto use "highway" and "road" interchangeably, or to substitute other words such as "ways" or even"trails" and cease to refer to "highways" at all. Arguably, this can produce a significant shift inemphasis. There appear to be distinctions between "highway" and "road," and between "road" andstill lesser terms, such that only "highways," the term chosen by Congress, should properly be used.

Like many words in the English language, the term "highway" has more than one meaning;unfortunately, two of its meanings have somewhat opposite connotations, as can be demonstratedfrom numerous treatises and other sources. (87) One of the principal definitions of the term is a generic onemeaning any avenue of travel open to the public, including rivers and bridges. (88) Congress has used the termin this sense when it has referred to rivers being free highways. (89) With respect to groundtransportation, the term "highway" similarly can mean any way open to the public, even includingfootpaths. The term especially has this meaning in English law when used in the context ofprescriptive rights obtained by the public across private lands, and this meaning carried over intosome American state law. (90)

Under English law, too, better roads -- those that were built up so as to be literally "high"ways, typically connected towns or market places, etc. and enjoyed better protection for travelers --were known as "King's (or Queen's) highways". This usage gave rise to the second meaning ofhighway as "a main or principal road forming the direct or ordinary route between one town or cityand another, as distinguished from a local, branch, or cross road, leading to smaller places off themain road, or connecting two main roads." (91)

American dictionaries of common usage published near the time of enactment of R.S. 2477indicate that this second meaning, that of principal public roads, was evidently the commonAmerican meaning at the time of enactment: highway was not defined in the generic sense as a travelcorridor of any kind. Rather, the contemporaneous common usage dictionaries use "road" as themore generic term, and "highway" (at least in the context of ground transportation) to mean a moresignificant road. According to the 1865 Webster's Dictionary, a "road" is

a riding, a riding on horseback, that on which one ridesor travels, a trackway, a road, from ridan , to ride .... a place where one may ride; an open way orpublic passage; a track for travel , forming a communication between one city, town, or place , andanother. (92)

According to the same 1865 dictionary, a "highway" is a public road, a way open to allpassengers. (93) The 1860Webster's Dictionary also indicates that "road" is the general term for any ground appropriated fortravel, while "highway" is a significant type of road:

Road: an open way or public passage; groundappropriated for travel , forming a communication between one city, town, or place , and another. The word is generally applied to highways, and as a generic term it includes highway, street and lane.... (94)

Highway: a public road; a way open to all passengers;so called, either because it is a great or public road, or because the earth was raised to form a drypath. Highways open a communication from one City or town to another. (95)

Although the terms at times have been used interchangeably in discussing R.S. 2477,"highways" is the term used by Congress and it is used in conjunction with a requirement forconstruction. "Roads" appears to be the more general term and "highways" the more specific term. In other words, while all highways are roads, not all roads are highways, since, arguably, highwaysare public, and are more significant, built up roads. (96)

In which sense Congress used the term highway is obviously of great significance ininterpreting R.S. 2477. Whatever the meaning of highway might be in other contexts, such as thedetermination of prescriptive rights, the question arising from its use in legislation is one ofcongressional intent. One writer noted the difficulties entailed by the use of the term highway inlegislation:

...It is to be regretted that the term 'highways' has notbeen more accurately employed by the courts and text writers, for it is undeniably true thatconfusion, and sometimes injustice, has resulted from the use of this vague and ill defined term. Whether streets, ferries, railroads, rivers, or rural roads, are all meant to be included in a particularstatute can not, in many instances, be asserted without a careful study of the entire statute and a fullconsideration of all the matters which the courts usually call to their assistance in ascertaining themeaning and effect of legislative enactments. A word capable of so many different meanings canseldom, of its own force and vigor, influence the judicial mind engaged in the work of ascertainingand enforcing the legislative intention. (97)

For reasons that will be developed, it appears likely that Congress in the 1866 Act used theterm highway in the sense of a significant or principal road; namely, one that was open for publicpassage, received a significant amount of public use, was constructed or improved, and thatconnected cities, towns, or other places of interest to the public. It is interesting to note that somedegree of constructed improvement inheres in this concept of a highway in order to support thegreater public use that characterizes such roads. This comports with Congress' reference to grantingrights of way for the "construction of highways". Of course, it must be kept in mind that highwaysin times past were not 6-lane paved roads, and that the historical amount and type of travel in an areaand era must be taken into account in evaluating what qualifies as a principal, public, improved road.

There is no legislative history that sheds light on why Congress included the highway grantas section 8 in the Mining Act of 1866 (Act), or on exactly what Congress intended by the languageof the section. The Mining Act of 1866 established a system for the recognition of several practicesthat had been taking place on public domain lands. Some of the provisions directly addressedmining, other provisions related to the use of water and to rights of way. These latter provisionsaddressed practices that were related to mining, but had implications beyond the mining context. The Act legitimized mining claims in accordance with federal laws or regulations, state and locallaw, and even the local customs of miners, and provided that claimants could obtain full title to thelands on which mining claims were located. Because water was necessary for some types of mining,the Act acknowledged rights to use water, if such rights were recognized by local customs, laws, andthe decisions of courts, and Â§ 9 of the 1866 act also addressed construction of rights of way forditches for the transport of water.

The principal focus of the floor debates on the Act was on alternatives for disposing of themineral lands of the United States, and section 8 was not discussed. (98) Therefore, in seekingclarification of the intent of Congress in enacting R.S. 2477, we must look primarily to the wordsCongress actually used and to the historical context in which they were enacted. While the issue isnot free from doubt, a court -- faced squarely with the issue -- is likely to find that the understandingof Congress in 1866 was probably of highways in the sense of significant public roads, aninterpretation supported by the historical context in which the 1866 Act was passed, (99) including othercongressional enactments, as discussed below

Historical Context

The creation of roads and access were fundamental problems implicit in the surveying systemthe federal government used to divide and dispose of public lands. The federal government appliedthe same system of surveying since the Continental Congress passed the Land Ordinance of 1785,an act that was later re-enacted by the new federal government. (100) Under this system, aprincipal meridian, base, standard and guides were first measured and marked, and "townships" --squares six miles on a side -- were surveyed. The townships were then divided into "sections" onemile on a side, each of which contained 640 acres (the amount of land allowed under theStock-Raising Homestead Act of 1916). These sections were divided into halves (the 320 acresallowed under the Desert Land Entry Act of 1877), or further divided into quarters (the 160 acresallowed under the Homesteading Act of 1862), or smaller subdivisions allowed under certain otheracts.

These sections and blocks available for settlement and disposal were absolute, that is eachsurveyed subdivision abutted the next one without access corridors intervening. This practice,combined with the fact that many sections of lands were granted to the states and other entities forschool and other public purposes to spur development, resulted in "checkerboard" land patterns andmeant that access needs were a pressing exigency. Congress did not resolve the issue, choosinginstead to acquiesce in whatever access solutions developed on unreserved federal lands. Accessproblems typically were resolved among settlers as the local topography and circumstancesindicated; usually, settlers simply created roads and ways across lands as needed. Subsequent settlerstook title subject to established roads and ways. (101) Later, as areas became more developed, access needs wereresolved by negotiation and purchase of the necessary rights. Given the intermingled patterns of landownership, establishment of roads was typically of mutual benefit, which apparently facilitatedresolution of this difficulty that was inherent in the survey system. Territorial and state laws alsoplayed a role in the resolution of access and roads issues, as will be discussed.

A court has discussed the problem caused by the surveying system as follows:

[The sections] touch at their corners and their points ofcontact, like a point in mathematics, are without length or width. If the position of the companywere sustained, a barrier embracing many thousand acres of public lands would be raised,unsurmountable except upon terms prescribed by it. Not even a solitary horseman could pick hisway across without trespassing. In such a situation the law fixes the relative rights andresponsibilities of the parties. It does not leave them to the determination of either party. As longas the present policy of the government continues, all persons as its licensees have an equal right ofuse of the public domain, which cannot be denied by interlocking lands held in privateownership. (102)

In an 1890 case the Supreme Court declined to enjoin sheepherders from driving sheep acrosssections owned by plaintiffs in order to reach open public lands, stating:

We are of the opinion that there is an impliedlicense growing out of the custom of nearly a hundred years, that the public lands of the UnitedStates ... shall be free to the people who seek to use them where they are left open and unenclosed,and no act of government forbids this use ....

The whole system of the control of the publiclands of the United States as it had been conducted by the Government, under acts of Congress,shows a liberality in regard to their use which has been uniform and remarkable. (103)

The Court, in the course of distinguishing between access rights the federal governmentmight have retained and those of settlers in the context of a federal land grant for the constructionof a railroad, also stated:

Congress obviously believed that when developmentcame, it would occur in a parallel fashion on adjoining public and private lands and that the processof subdivision, organization of a polity, and the ordinary pressures of commercial and socialintercourse would work itself into a pattern of access roads .... It is some testament to common sensethat the present case is virtually unprecedented, and that in the 117 years since the [railroad] grantswere made, litigation over access questions generally has been rare. (104)

It is interesting to note that an 1895 Solicitor's opinion found that the government had alwaysallowed miners to build access roads without either a permit or the payment of a fee:

Since it has traditionally been customary for mininglocators, homestead and other public land entrymen to build and/or use such roads across publiclands other than granted rights-of-way as were necessary to provide ingress and egress to and fromtheir entries or claims without charge, the question whether a fee may be charged for such use is notonly of broad, general interest but to make such a charge now would change a longpractice.

... Congress knew, when it enacted the mining laws, thatminers necessarily would have to use public lands outside of the boundaries of their claims for therunning of tunnels and for roads.

The Department has recognized that roads werenecessary and complementary to mining activities.... (105)

The opinion did not mention section 8 of the 1866 Mining Act (R.S. 2477) as relevant to thediscussion of mining road access. Furthermore, if the 1866 Act is read as granting individual access,this interpretation would controvert the universally recognized requirement that a way be public tobe a highway. (106) It is arguable that the better interpretation is that creation of individual access was tolerated as amatter of course and that R.S. 2477 addressed public roads. If the 1866 Act is read to meanhighways in the generic sense of all kinds and types of ways, including minor individual access ways,one could argue that the act was superfluous since the federal government at that time was allowingsuch use without requiring a grant or permit and did not attach any management significance todoing so. And if the 1866 provision was intended to legitimize all transit and access across thepublic domain, this would include individual access roads and trails that were not public.

However, the other meaning of "highways" -- as significant public roads -- arguably is moreconsistent with other measures Congress enacted that both addressed continued easy individualaccess on the one hand and the development of significant transportation corridors on the other.

In the Unlawful Inclosures of Public Lands Act of 1885, Congress regulated the fencing offof public lands (even when the fences were on private lands (107) ) and prohibited theobstruction of "free passage or transit over or through the public lands". (108) This Act prohibitsobstruction of any passage over the federal lands -- whether on established ways or not -- and isreflective of Congress' tolerance of such passage during the time of western settlement, an indicationthat a special statute on minor access ways was not required. If R.S. 2477 granted rights of way onlyfor highways in the sense of significant public roads, the 1885 Act serves more of a function becausethere would be a need for federal protection of all other free passage and transit across the publiclands.

During the time of settlement of the new national lands to the West, Congress also providedland grants for the "construction" of many transportation routes by canals, railroads, or "wagonroads". These grants, including those made for wagon roads, typically were for the construction ofparticular routes between named destinations, often with some legislated detail as to the type andtiming of construction. Such grants typically included grants of lands sufficient both for the bed ofthe transportation route itself, and extra lands to be sold so that the proceeds could be put towardcompleting the work. If construction did not occur, there typically was language providing for thereversion of the lands to the United States.

Several statutes enacted before 1866 provided for "construction" of "wagon roads," whichwere to be well constructed roads adequate for the movement of troops and the mail. Clearlyconstruction of these roads entailed definite physical acts to improve the roadbeds, and Congress attimes required them to be built to very substantial standards, involving considerable earth-movingactivities, even to the extent of leveling hills. (109)

Some of these statutes provided simply that the roads were to be "public highways"; othersstated that the road must remain a public highway "for the use of the government of the UnitedStates, free from tolls or other charge upon the transportation of any property, troops, or mails of theUnited States." (110) An 1866 statute established a process for the dedication of military roads in the District of Columbiaas public highways. As noted above, roads suitable for the movement of troops typically were wellconstructed; this statute simply provided a process for allowing use of the military roads by thepublic. (111)

It is important to reiterate that the problem of securing routine access and constructing minorroads throughout the federal public lands surveying system existed and had been resolved for almosta century before Congress enacted R.S. 2477. Before and after R.S. 2477, the federal governmenttolerated the creation of access ways and roads across open federal lands; settlement was theprincipal interest of the federal government in the eighteenth and nineteenth centuries, and allowingindividual access was such a given that it was seldom discussed. Even after enactment of R.S. 2477,the principal work that reviews federal land grants does not discuss access issues, nor mention the1866 provision. (112)

After enactment of R.S. 2477, Congress adopted many other rights of way provisions forvarious types of rights of way, especially with respect to crossing federal reservations. Thispotpourri of other rights of way acts argues again for an interpretation of the 1866 Act as not meaning generic ways of all types, but rather as referring to significant roads.

Before enactment of R.S. 2477, in addition to acquiescing in the creation of individualaccess, Congress had authorized and made land grants for the construction of transportation arteries,including large, well constructed roads in some instances. We have found only one land grant fora wagon road enacted after the enactment of the 1866 Act. It is arguable that, since the federalgovernment continued to acquiesce in the creation of access ways to individual properties as settlersspread westward, perhaps R.S. 2477 was an express grant of rights of way for all more significantroads -- those "highways" that were to be open to the public, to serve as important connectors, andthat were to involve some degree of construction to support such use.

In 1872, Congress revisited the mining issues and modified many of the provisions of the1866 Act. (113) The1872 Act did not change section 8 of the 1866 Act on rights of way, and there is no discussion of thesection or its retention in the legislative history of the 1872 Act. In 1899, Congress enacted aprovision of permanent law as part of an appropriations act:

That in the form provided by existing law the Secretaryof the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment thepublic interests will not be injuriously affected thereby. (114) (Emphasis added.)

On the face of this provision, Congress arguably again used "highway" to indicate significanttypes of transportation corridors. The legislative history of the provision is inconclusive, butindicates that it was felt necessary to specify that the new rights of way were for railroads, becausethe Department did not construe the term highways as including railroads. (115) This is noteworthybecause if 'highway' was generally understood to mean all public avenues of travel, rather than justsignificant land roads, it would include railroads. However, it would also have included wagonroads as well, so why Congress mentioned both highways and wagon roads is not clear.

In 1875 Congress granted a general right of way through the public lands to any railroadcompany for tracks, stations, etc. (116) Later statutes provided for the disposition of the landsunderlying the railroad rights of way upon abandonment; both of these later statutes excepted "publichighways" established within the railroad corridors from the disposal provisions that wouldotherwise apply. (117)

Section 603 of FLPMA in 1976 directed the BLM to conduct a wilderness suitability reviewof the large roadless areas under its management. Although "roadless" was not defined in the statute,the section by section discussion in the House report clarifies that:

The word 'roadless' refers to the absence of roads whichhave been improved and maintained by mechanical means to insure relatively regular and continuoususe. A way maintained solely by the passage of vehicles does not constitute a road .... (118)

The explanation set out in the Committee report was reflected in the regulationsimplementing the wilderness review, which defined roadless areas in part as areas within which thereis no improved road that is suitable for public travel by means of four-wheeled, motorized vehiclesintended primarily for highway use. (119) The Wilderness Inventory Handbook, prepared to assistpersonnel with completing the wilderness suitability inventory, adopted the Committee reportlanguage as the definition of "road," and also defined several other relevant terms in connection withevaluating roads. (120) Because other sections of FLPMA repealed R.S. 2477, Congress can be said to have been awareof R.S. 2477 when it used and commented on the term "roadless." If the more general term "road"in 1976 connoted to Congress a way that had been "improved and maintained by mechanical meansto insure relatively regular and continuous use," this usage is consistent with the use in 1866 of themore specific term "highway" as a constructed and improved road that served as a significant publicconnector. (121)

Administrative and Judicial Interpretation of 1866 Act

Administrative Interpretation

The federal government historically seems to have adopted a position of benign neglect ofR.S. 2477 that probably reflects the acquiescence of the United States on access issues during thesettlement of the West and the pre-FLPMA absence of coherent policies and authority for themanagement of the public lands. No application or approval from the government was considerednecessary to perfect an R.S. 2477 grant, and the grant did not need to be recorded.

Although we know of no contemporaneous agency interpretation of the Act, (122) an 1898 decision ofthe Secretary determined that dedication of highways along section lines, without construction, didnot complete a grant. (123) A 1938 regulation that was repeated over time simply statedthat a highway grant became effective "upon the construction or establishing of highways inaccordance with the State laws." (124) We note, however, that this position retains the crucialstatutory elements of "construction" and "highways," and does not necessarily mean that stateinterpretations that vitiate or eliminate these elements are valid. This issue will be more fullydiscussed later.

Too much can be read into this silence of the federal government. In reviewing the cases,it is important to distinguish those decided before FLPMA, when the federal government had muchless interest in the validity or existence of rights of way of any type across its lands, (125) and the statutorymanagement authority over the remaining public domain lands was piecemeal. For much of the timebefore the enactment of FLPMA it may well simply not have mattered whether a particular right ofway was a highway that qualified under R.S. 2477, or was some other type of road for which someother federal permission could readily be demonstrated or obtained, since all forms of access andsettlement were being encouraged.

Over the years, federal policies increasingly stressed retention of the public lands in nationalownership and the affirmative management of the remaining public domain lands to conserve andprotect the lands and resources. In 1976, FLPMA expressly recognized a policy of retention of theremaining public lands, (126) repealed many of the piecemeal right of way statutes, includingthe 1866 Act, and replaced them with a new comprehensive process for the permitting andconditioning of rights of way.

Because R.S. 2477 was a federally enacted grant, its interpretation raises questions of federallaw. (127) However,federal law may incorporate state law as part of the law to apply, and the extent to which this maybe true in the R.S. 2477 context has caused much controversy. State law also clearly plays a role,especially in evaluating whether and when a state accepted a right of way grant.

After the repeal of R.S. 2477, the Bureau of Land Management issued a regulation permittingpersons, or State or local governments who had constructed public highways under the authority ofR.S. 2477 to file maps with BLM showing the locations of highways claimed to be valid existingrights. The regulation states that the filings were not conclusive as to the existence or non-existenceof the highways (leaving that final determination to the courts), but were to facilitate managementof and planning for the public lands. As originally proposed, the regulation set out a 3-year periodfor such filings, but this time limit was eliminated in the final regulations in 1982. (128)

In 1980, a letter written by a Deputy Solicitor of Interior opined on the standards to beapplied in determining whether R.S. 2477 highways were established. (129) This analysis notedthe inconsistent judicial decisions on the subject and the fact that they did not "come to grips" withthe central issues of what was offered by Congress and to whom, and how such rights of way wereto be perfected. The opinion asserts that whether a particular highway has been legally establishedremains a question of federal law, and that use of the term "construction" means that some actualbuilding of a highway was necessary to comply with the terms of the grant. In this regard, theopinion noted that not requiring actual construction would be potentially unmanageable becauseotherwise innumerable jeep trails, etc. might qualify as public highways. (130) R.S. 2477 claimants,however, have argued that what might be desirable for post-1976 federal land management purposesis not relevant to determining what constituted valid pre-1976 acceptance of the 1866 grant, and thatInterior cannot retroactively set standards for establishing highways long since vested. (131)

The Ferguson opinion, in addressing the 1866 granting language, concluded that"construction" must be construed as an essential element of the grant offered by Congress or elseCongress' use of the term is meaningless and superfluous. "The states could accept only that whichwas offered by Congress and not more." (132) The Ferguson opinion further stated that constructionordinarily means more than mere use, and entails actual building such as grading, paving, placingculverts, etc. to prepare the highway for actual use. (133) Given the statutory requirement of construction, the phrasein the BLM R.S. 2477 regulations referring to construction of highways 'in accordance with the Statelaws' "must mean that a state could lawfully require more than mere construction of the highway inorder to perfect the R.S. 2477 grant; i.e. , 'construction' is the minimum requirement of federal lawbut the State could impose on itself additional requirements in order to perfect a grant under R.S.2477." (134)

In the initial regulations of the Department implementing the new FLPMA Title V rights ofway, the Department called upon persons "who had constructed public highways" to submit mapslocating such highways for notation on the records of the Department in order to facilitate the newfederal planning and management mandated by FLPMA. Here again, the Department continued touse the same phrasing -- that which is required by the relevant statute. In addition, the Departmentincorporated the concept of road improvement by mechanical means set out in a FLPMA committeereport as the analysis of what could constitute a 'road' under Â§603 of FLPMA, pertaining to roadlessareas and wilderness reviews. Again, to require less for a right of way to qualify as a highway thanis required to be a road arguably is inconsistent.

A Departmental Policy was issued in 1988 that differed significantly from the FergusonOpinion. (135) According to the June 1993 Task Force Report, circumstances in Alaska drove the new policy onR.S. 2477: "The 1988 DOI policy, attempting to account for the perceived uniqueness of the Alaskasituation, put forward loose criteria for R.S. 2477 claims and applied these criteria to all federal landsunder DOI jurisdiction in all 30 public land states." (136) Among the 1988 criteria was one that set out minimalconstruction requirements and stated that removal of rocks and vegetation by hand, or the merepassage of vehicles might be sufficient.

Construction is a physical act of readying the highwayfor use by the public according to the available or intended mode of transportation -- foot, horse,vehicle, etc. Removing high vegetation, moving large rocks out of the way, or filling low spots, etc.,may be sufficient as construction for a particular case. (137)

To the extent this statement means that the mere moving of rocks and vegetation by handqualifies as construction, it could be argued that this does not comport with Congress's intent ingranting rights of way for the construction of principal or significant roads. However, some arguethat it does because, depending on the terrain and the time the right of way was established, the mererepeated passage of traffic with only slight modifications of the roadbed could suffice.

The 1988 Policy also stated that a qualifying highway could be a trail or a footpath, but didnot include any analysis to support that position.

The 1994 proposed R.S. 2477 regulations defined "construction" as

An intentional physical act or series of intentionalphysical acts that were intended to, and that accomplished, preparation of a durable, observable,physical modification of land for use by highway traffic. Where State law, in effect on the latestavailable date, further limits the definition of construction, these limits also apply.

"Highway" was defined as:

A thoroughfare that is currently and was prior to thelatest available date used by the public, without discrimination against any individual or group, forthe passage of vehicles carrying people or goods from place to place. Where State law, in effect onthe latest available date, further limits the definition of highway, these limits alsoapply.

"Public lands not reserved for public uses" and "unreserved public lands" were also definedat length, and in most pertinent part were stated to not include:

(I) lands that were set aside, dedicated for specificpurposes, withdrawn, or otherwise reserved from disposition under the public land laws by an Actof Congress, Presidential Proclamation or Executive Order, Secretarial Order, or classificationactions authorized by statute that specified that the land would be used for a specific purpose or thatprevented certain uses.

On January 22, 1997, then Secretary of the Interior Bruce Babbitt revoked the 1988 Policyand established a new, interim policy. Noting the congressional prohibition against final regulationsgoing into effect without congressional approval, the Secretary instructed BLM to "defer anyprocessing of R.S. 2477 assertions except in cases where there is a demonstrated, compelling, andimmediate need to make such determinations." BLM could, however, accept claims and makerecommendations to the Secretary and in doing so was to "examine all available documents andmaps and perform an on-site examination to determine whether construction on the allegedright-of-way had occurred prior to the repeal of R.S. 2477 on October 21, 1976." No definition ofconstruction was set out. In addition, the agency was to evaluate whether the alleged right of wayconstitutes a highway, which was stated to be "a thoroughfare used prior to October 21, 1976 by thepublic for the passage of vehicles carrying people or goods from place to place." "In making itsrecommendations, the agency shall apply state law in effect on October 21, 1976, to the extent thatit is consistent with federal law." The agency was not to recommend approval of claims that did notcomply with the requirements of applicable state law.

A proposal for legislation was also sent to Congress in August of 1997 that established aprocedure for determining the validity of claimed R.S. 2477 rights of way and contained definitions. "Construction" was defined as:

An intentional physical act or series of intentionalphysical acts that were intended to, and that accomplished, preparation of a highway by a durable,observable, physical modification of land for use by highwaytraffic.

"Highway" means:

A thoroughfare that was prior to the latest available dateused by the public, without discrimination against any individual or group, for the passage ofvehicles carrying people or goods from place to place.

"Public lands not reserved for public uses" or "unreserved public lands" were defined insomewhat awkward syntax as meaning:

lands owned by the United States that were availableand open to the public under various public land laws that provided for disposition to the public, butlands that had not yet been set aside, dedicated, withdrawn, reserved, settled, preempted, entered,appropriated, or disposed of, or on which claims had not beenlocated.

As part of the current litigation in Southern Utah Wilderness Alliance v. Bureau of LandManagement (SUWA v. BLM) , (138) the court allowed BLM to make initial determinations as tothe validity of the rights of way claimed by several counties in Utah. (139) For purposes ofmaking those determinations, BLM applied the following with respect to construction:

Some form of mechanical construction must haveoccurred to construct or improve the highway. A highway right-of-way cannot be established byhaphazard, unintentional, or incomplete actions. For example, the mere passage of vehicles acrossthe land, in the absence of any other evidence, is not sufficient to meet the construction criteria ofR.S. 2477 and to establish that a highway right-of-way was granted. (140)

Evidence of actual construction may include such thingsas road construction or maintenance records, aerial photography depicting characteristics of physicalconstruction, physical evidence of construction, testimony or affidavits affirming that constructionoccurred, official United States Government maps with legends showing types of road, as well asother kinds of information.

The court also indicated that as part of the validity determinations performed for the court,BLM built upon the definition of "highway" contained in the 1980 Ferguson Letter at 8 which states"[a] highway [for purposes of R.S. 2477] is a road freely open to everyone; a public road:"

The claimed highway right-of-way must be public innature and must have served as a highway when the underlying public lands were available for R.S.2477 purposes. It is unlikely that a route used by a single entity or used only a few times wouldqualify as a highway, since the route [must have] open public nature and uses. Similarly, a highwayconnects the public with identifiable destinations or places. The route should lead vehiclessomewhere, but it is not required that the route connect to cities. For example, a highway can allowpublic access to a scenic area, a trail head, a business, or other place used by and open to the public. Routes that do not lead to an identifiable destination are unlikely to qualify. (141)

The position of the Department consistently has been that the elements set out in the statutemust be complied with: namely that there must be construction of a highway across unreservedpublic lands. (142) However, the details of the Agency's articulation of these elements have changed over the years,especially in the 1988 Policy, which interpreted construction very broadly.

The contemporaneous and reasonable interpretation of the agency entrusted withimplementing a law, when arrived at through formal rulemaking or adjudication, is entitled todeference. (143) However, as noted, there does not appear to have been any contemporaneous interpretation adoptedby the Department. Rather, it appears that except for the 1898 decision that mere declarations ofhighways along section lines without actual construction did not constitute completion of the grant,the 1938 regulation, the 1959 Solicitor's Opinion on mining access, and a few other pre-FLPMAdocuments, the Department's analysis has been almost entirely post-FLPMA. The Department seemsto have consistently taken the position that a prospective grantee must comply with the elements ofthe granting law, but the arguably minimal standards of the 1988 policy call into question themeaning of the construction requirement. (144)

Until the 1993 study, the Department of the Interior does not seem to have extensivelyanalyzed the meaning of "highway" in the 1866 Act, (145) or to have correlated that definition either with the statutory"construction" requirement, or with the previous congressional enactments on highways, theDepartment's own analyses of mining access rights discussed previously, or with the use of "road"for purposes of wilderness review. Agency interpretations that are promulgated long after the actin question, that are not contained in rulemaking, or that are inconsistent are not entitled to the samedeference as is contemporaneous rulemaking, (146) an approach that may apply to agency interpretation of R.S.2477. If so, then arguably agency R.S. 2477 interpretations, while entitled to respect, must rest ontheir power to persuade. (147)

The Appendix to this report summarizes the various iterations interpreting the key terms ofthe 1866 grant.

Judicial Interpretation

Judicial interpretation does not provide conclusive precedent on some important R.S. 2477issues for several reasons. R.S. 2477 is a federal statute and must be interpreted as a matter offederal law. (148) However, federal law may at times apply state law, and many argue that this is the case in the R.S.2477 context. In particular, many claimants who feel that state law controls point to the earlyDepartment of the Interior regulation that stated that a highway grant became effective "upon theconstruction or establishing of highways in accordance with State laws," and to numerous casesholding that state law controls. Others assert that while state law controls as to state concerns, itcannot controvert the basic elements of the federal grant. Many of the cases predate the enactmentof FLPMA, which both repealed R.S. 2477 and put in place new federal public land policies, andtherefore date to a time when the federal government was not concerned about the rights of waygrants. In addition, the cases were typically in state courts and the federal government was not aparty.

There appear to be two levels of inquiry that at times become merged: 1) what actions arenecessary to create a public highway under state law for purposes of determining relative propertyrights, and whether a state or political subdivision of a state has incurred obligations to maintain andbe liable for the highway; and 2) whether a public highway established under state law is also alwaysa highway under R.S. 2477.

Legitimate issues remain as to the proper interpretation and weight to be given state courtholdings on the establishment of R.S. 2477 rights of way. The following section discusses some ofthe more important issues and the most frequently cited cases involving R.S. 2477.

Role of State Law. The most fundamental andcontroversial issue is the proper role of state law in validating the establishment of R.S. 2477 rightsof way. Clearly there is a role for state law to play, but the proper extent of that role is not clear. The grant of highway rights of way under the 1866 Act and the interpretation of that Act raisequestions of federal law. (149) A federal grant usually is construed in favor of thegovernment. However, this strict interpretation has been held to be rebutted with respect to manygrants made to assist in the settlement of our country, because of the great public interests intendedby those grants. Courts have applied both approaches with respect to rights of way. (150)

Clearly, federal law may incorporate or apply state law in some instances, and the 1866 Act,at least to some degree, is such an instance. It does not specify how the highway grant is to beaccepted by a state or locality, or the scope of the rights granted, and state law can play a significantrole in defining these and certain other aspects. State law is controlling as to state concerns, suchas relative rights among parties within the state, and certainly, state law may validly supply detailsor additional requirements unique to a particular state -- for example with respect to procedures foraccepting the highways as public for purposes of maintenance and liability. But the extent to whichR.S. 2477 may fairly be interpreted as adopting state law as to the elements of the grant itself is theprincipal controversy -- whether, for example, state law can eliminate or otherwise controvert oneor more of the terms of the federal grant.

The same group of cases is frequently cited for the proposition that state law controls --especially with respect to the fact that mere passage without construction can suffice to satisfy thegrant. However, as will be discussed, it appears from an examination of the principal state cases,that the state courts sometimes indulged in dicta (non-binding judicial discussion) and thepronouncement of broadly worded rules not warranted by the facts before the court. A closeexamination of the facts of these cases often indicates that the roads in question clearly wereconstructed highways and, therefore, the broad generalizations or rules for which the cases are citedwere not in fact the necessary holdings of the court, and hence their value as precedent arguably issometimes overstated. In addition, the cases sometimes are cited for rules broader than thoseactually formulated by the courts. Later cases then typically cite the earlier cases as precedentwithout further analysis. For these reasons, the law surrounding many of R.S. 2477 issues continuesto be debated.

The principal issue is whether state law controls such that it may contradict or even eliminatethe express federal statutory elements of the grant offered. Other statutory provisions may shed lighton this question. For example, the portions of the 1866 Act that pertain to mining and mineral rightsexpressly recognize and permit state and local law and even local customs to apply if they are "notinconsistent with the laws of the United States," language missing from Â§ 8 of the 1866 Act. Section8 of the Reclamation Act of 1902 expressly states that the Secretary of the Interior shall comply withstate laws in carrying out that Act, but is also silent as to consistency. Nonetheless, the SupremeCourt held that state law cannot contravene that federal law or frustrate its federal purposes. (151) Arguably, state lawmay apply to elaborate on R.S. 2477 and to indicate when a state has accepted the federal grant, butcannot contravene its terms. The highway grant is succinct, but does contain discernible elements:the grant is for the purpose of 1) the construction of 2) highways 3) across public lands that 4) arenot reserved at the time of acceptance.

One of the principal cases cited for the proposition that state law determines when the offerof a grant has been accepted by the construction of highways is an Arizona case. (152) This "rule" is correctwith reference to that state's law, since Arizona law required both construction and designation ofpublic highways by official action. (153) Indeed, the rule would always be correct -- that state lawdetermines when the offer of a grant has been accepted by the construction of highways so long asstate law does not contravene the two elements of construction and highways, (154) and so long as the landsacross which a highway runs were public lands not reserved at the time the highway was constructed.

The majority of cases interpreting R.S. 2477 have been state cases not involving the federalgovernment. An important case that did involve the United States that is cited for the propositionthat state law controls is the "Burr Trail" or Hodel case, (155) but the holding in this case may not be as broad as issometimes asserted. On appeal, the case involved only the scope of an R.S. 2477 right of way, sincethe valid establishment of the road was not before the court, this point having been conceded. Issuesas to establishment could involve whether the road was constructed adequately, was on landsunreserved at the time of establishment, or was a highway within the meaning of the statute; issuesas to scope could involve the width and range of permissible uses and improvements that can be saidto have been included within the rights of way granted. The specific issue before the court waswhether a proposed subsequent widening of the road was reasonable and necessary under Utah law,and within the right that was granted. Although the holding of the court in Hodel does not apply toestablishment, it is sometimes cited as precedent on that issue.

The appellate court in Hodel considered the 1980 Ferguson opinion letter and rejected areading of that letter that would result in no role for state law. The court then correctly noted thatthe second possible reading of the letter -- that it speaks only to what is necessary to perfect an R.S.2477 right -- did not help appellant because only the question of scope was before the court. (156) The court then stated:

The third possible reading of this letter would returnus to BLM's regulations: as a matter of federal law, state law has been designated as controlling. This third reading, we think, is most consonant with reason and precedent. (157)

Arguably, this assertion is further support for the conclusion that state law controls. On theother hand, given the language that immediately precedes this quote, it could be argued that the courtheld that state law is controlling as to the scope of an R.S. 2477 right of way. To the extent that theopinion might be read as holding that state law is controlling as to establishment, one can argue thatthat is a strained reading of the Ferguson letter (158) and the 1866 Act, and is dicta because it is an interpretationnot necessary to the decision of the court.

The court also stated that the federal regulations "heavily support a state law definition." (159) Yet, as noted above,the federal regulations retain the three essential elements of the statute: namely construction of highways on unreserved lands in accordance with state laws. It is not clear from the face of theregulation that state law inconsistent with these requirements could result in a valid acceptance ofthe grant offer. (160)

The valid existence of an R.S. 2477 road was in controversy in the lower court in Hodel. Thedistrict court had held that under R.S. 2477, a right of way could be established by public use underterms provided by state law. (161) The court cited two other federal cases as authority for thisproposition. In one of them, United States v. 9,947.71 Acres of Land , the court concluded that amine access road was a qualifying R.S. 2477 public highway that resulted in a private propertyinterest in the user that was compensable under the 5th Amendment, even though the road definitelywas not a public highway under state law. (162) This case seems anomalous as to this point and the case didnot probe what construction was necessary to establish an R.S. 2477 right of way, but did note factsthat indicated actual construction had occurred.

The Wilkenson case was also cited by the district court for the rule that state law governsestablishment of R.S. 2477 highways notes that at the time of that decision (1986), there was nodirect and controlling precedent for the legal conclusions reached. (163) It is important to notethat the parties in Wilkenson "were in agreement" that the right of way statute was to be applied byreference to state law to determine when the offer of the grant has been accepted by the "constructionof highways." (164) The court then pointed out that under Colorado law, the term highways could include footpaths, thatthe use of a road by a single person could suffice, and that mere use of a highway withoutconstruction was "sufficient." (165) By implication, the court seems to have meant that this statelaw was sufficient under R.S. 2477, even if state law eliminated one or more of the federalrequirements, such as actual construction, or a highway being public. However, the court alsoprobed the road segments in question and concluded that construction on the "Serpent's Trail," partof the highway connecting the two towns in question that was used by people and livestock, wascompleted before inclusion of the lands in a federal national monument. The court also noted thatthe roads in question were described as surveyed and actually built; visited by approximately onethousand people a year at the turn of the century; traveled by wagons; built in part under a countycontract; completed with volunteer labor, financial contributions from Glade Park residents, andpayments from the County; and served as connectors between towns and the next state. (166) These facts appear tosatisfy the elements of the federal statute, (167) and therefore, the expansive comments of the court could becharacterized as dicta.

While the district court opinions in Wilkenson and Hodel enunciated the rule that state lawgoverns even as to establishment, neither case had before it an instance where both the relevant statelaw purported to eliminate the R.S. 2477 statutory elements and the road in question actually failedto qualify under the R.S. 2477 requirements.

The state law applied by the courts varied widely. Some of the western territories and newstates expressly addressed the issue of roads, especially after the enactment of the 1866 grant. Somestate statutes clearly articulated how highways were to be established and hence how the R.S. 2477grant was to be accepted. Where state law was clear, there are few disputes today as to which roadsqualify under R.S. 2477. See, for example, the early Arizona law that provided that all roads andhighways in the territory of Arizona which were located as public highways by order of the boardof supervisors, or recorded as public highways, were declared to be public highways. (168) Many of these lawsprovided that the counties had the authority to take actions that made rights of way public highways.

The law of other states is not as clear, and hence controversies now exist as to whether a validR.S. 2477 right of way exists. In Utah, for example, evidently there was no formal procedure foraccepting the highway grant and the status of roads in that state consequently is unclear. Some statesaddressed roads in several ways, speaking both to establishment of highways, and to roads servingindividual properties. (169)

The available federal case law is relatively sparse and, although general rules as to theapplicability of state law are repeated, the precedent on the issue arguably is not definitive and clearfor the reasons discussed. While the 1866 Act permits the application of state law as a generalmatter, (170) and statelaw at times has been articulated as including generous standards for when an R.S. 2477 grant wasaccepted, whether state law can contravene the federal statutory requirements remains an issue.

If the governing rule is articulated as being that a valid R.S. 2477 highway is one that is bothaccepted under the laws of the state in which it is located and also meets the federal requirements,the disparate body of state cases can be seen as essentially harmonious, and actual areas of conflictwith the federal requirements appear to be few. This interpretation is also consistent with theDepartment's earliest, and most of its subsequent interpretations.

Is Construction Necessary to Comply with theGrant? The necessity for actual "construction" is the principal focus of the issueof the proper role of state law in articulating acceptance of the 1866 grant offer, and has already beenaddressed in part in the preceding general discussion of the role of state law. As was also discussed,the 'plain meaning' of Â§ 8 of the 1866 Act (R.S. 2477) would seem to require actual construction. While there is no available legislative history of Â§ 8, Â§ 9 of the same Act (R.S. 2339) addressed"construction" of ditches. As to the use of the term construction in Â§ 9 of the 1866 Act, the SupremeCourt has explained that "[i]t is the doing of the work, the completion of the well, or the digging ofthe ditch" that complied with the statute. (171) The United States in the SUWA v. BLM appeal asserted thatit is a basic canon of statutory construction that identical terms within an act have the samemeaning. (172) However, the counties argue that the two instances are not analogous because you cannot have a wellor ditch without construction, but in some areas you can have a road without construction and that"where the subject matter to which the words refer is not the same in the several places where theyare used, or the conditions are different... the meaning well may vary to meet the purposes of thelaw." (173)

An important situation in which the construction issue arises is in the context of section linerights of way. The American surveying system did not provide for road corridors along section lines. In contrast to the American system, the Canadian system expressly did provide for road corridorsalong all section and township lines. (174) Some states adopted the Canadian approach and specified thatrights of way existed along section lines. South Dakota law states:

There is along every section line in this state a publichighway located by operation of law, except where some portion of the highway along such sectionline has been heretofore vacated or relocated by the lawful action of some authorized public officer,board, or tribunal. (175)

If a territorial or state government enacted such a law, the strips along section lines wereconsidered as dedicated for highway purposes and subsequent patentees took title subject to thesededicated rights of way. Eventually, most of these roads were actually constructed, relocated, orvacated in accordance with state law. If section line highways, or other public highways dedicatedby operation of law, were not constructed by the time the federal R.S. 2477 grant was repealed, whatis the status of such paper highways? Are they valid existing rights within the intent of FLPMAsimply because they were segregated and dedicated "for highway purposes", or did they need to havebeen actually constructed by the time of the rescinding of the federal grant? The issue is animportant one, because some states may press such claims now. (176)

The cases usually cited as authority for the conclusion that section line right of waydedications suffice as acceptance of the R.S. 2477 grant are pre-FLPMA cases between a state orstate subdivision and a citizen, not between the federal government and a state. In this context, itis reasonable that the state dedication of the lands is effective against a subsequent titleholder of thelands crossed by a right of way, even if the highway was not yet constructed when that person tooktitle. Under state law, the dedication is the lawful first step of a highway construction process thatcould be completed over time, and that dedication is enough to impose a state interest on the propertythat is good against subsequent titleholders. (177) However, this is not to say that the paper dedication iseffective against the federal government if the offer of the federal highway grant is rescinded beforeconstruction has been completed. A better argument appears to be that the roads must have beenconstructed to comply fully with the terms of the federal highway grant, and if they were not at leastpartially constructed by the time the grant offer is repealed, then the opportunity to comply with thegrant offer was extinguished upon repeal. That section line dedications alone, without construction,do not complete grants has long been the consistent position of the Department, (178) especially ifconstruction was not even begun before repeal of the granting statute. (179)

Another difficult question is whether mere use by the public can ever suffice to establish ahighway under R.S. 2477. Again, some of the cases cited for the proposition that public use alonecan result in a public highway appear to be overstated. For example, Central Pacific Railway v.Alameda County is frequently cited for the proposition that valid R.S. 2477 highways could beestablished by the mere passage of wagons. The court in that case noted: "The original road wasformed by the passage of wagons, etc., over the natural soil...." (180) However, the Courtalso had noted that "A public highway ... was laid out and declared by the county in 1859, and eversince has been maintained . During that time it has served as one of the main arteries of travel between the bay regions of southern Alameda County and the Livermore Valley." (181) Therefore, regardlessof how the road originated, it apparently did qualify under R.S. 2477, and the "rule" for which thiscase is often cited appears to be either overstated or dicta.

There are actually two issues involved in some of the cases that may be confused: 1) whetherpublic use without some formal acceptance by a governmental entity may nonetheless result in a"public highway" within a particular state; and 2) whether a highway established merely by publicuse without further improvement or construction of the roadway may qualify under R.S. 2477.

The first point may be answered wholly by the statutory and case law of the state involved. Some of the cases may not word the issue correctly -- as for example, by discussing "adversepossession" against the United States, which does not lie. (182) Under the laws ofsome states, public use of sufficient type over sufficient time may result in the creation of a publichighway in the first sense -- recognition under state law and/or acceptance by a state or localgovernmental entity for maintenance and liability. State law might also conclude that a valid R.S.2477 highway resulted, not because citizens are adversely possessing title against the United States,but because if public use of a certain type and duration results in acceptance of a "public highway"under state law, this is equated with adequate acceptance of the federal grant offer. (183)

However, this latter approach presents the second issue-- if public use may result in thecreation of a public highway under state law, does the resulting highway qualify under federal laweven if the road was not "constructed?" In some of the more arid parts of the country, repeatedpassage may compact a roadbed capable of sustaining regular use. If a road that was never improvedor maintained nonetheless served as a well-traveled transportation corridor between towns, and wasrecognized as a public highway under state law, could such a road qualify under R.S. 2477?

Here too, in the leading cases usually cited, the roads in question in fact appear to havesatisfied all of the elements of the 1866 Act. In the first Hatch case, for example, the road servedseveral towns and several purposes, and citizens had spent considerable private funds installingditches, bridges, and dugways. (184) Hatch II held that public use alone (as public use wasdescribed in ( Hatch I ), without any official action by a governmental entity could constitute validacceptance of an R.S. 2477 right of way, because Wyoming recognized a common-law doctrine ofestablishment of highways by user. In this case, the court was focusing on whether any officialacceptance was necessary under Wyoming law at that time to constitute acceptance of the federalgrant offer, and concluded that it was not. A recent decision of the Wyoming Supreme Court quotedfrom Hatch II with approval for the principles that state law controls the establishment of R.S. 2477rights of way, and that use alone suffices -- though the court held that a highway right of way in thatcase did not exist because later Wyoming statutes did require official acceptance. (185)

In Lindsay Land & Live Stock case too, a Utah case that has also been cited for theproposition that public use without construction is sufficient under R.S. 2477, the road in questionappears actually to have qualified under R.S. 2477. The court in that case actually worded the ruleas stated in Hatch, and noted that improvements had been made even without public funds, that theroad connected points between which there was considerable public travel, and that the use madeof the road was as general and extensive as the situation and surroundings would permit had the roadbeen formally laid out as a public highway by public authority. (186) Therefore, Lindsay does not appear to stand for the proposition that no construction or improvement of a road isnecessary to construct a public highway under the terms of R.S. 2477. This was not the rule statedin the case and was not the situation before the court. (187)

It seems unlikely as a factual matter that a road could be both totally unimproved and stillhave supported until 1976 the kind of regular and continuous use as a significant connector thatqualifies as a highway. (188) Even in arid areas, ditches and grading may be necessary atcertain places to cope with seasonal rains. It also seems unlikely that a road would remain totallyunimproved once it eventually became formally accepted as a public highway and maintained by thelocal government, circumstances that typically occurred well before 1976.

This is significant because in considering what alternatives may now exist for processing R.S.2477 claims, it has been said that any attempt to adhere to the language and requirements of the 1866Act would be disruptive of long established expectations. Yet, it may well be that an analyticapproach of asking both whether a right of way is a public highway under state law, and whether theroad is a qualifying highway under federal law, in fact will prove to be consistent with most of thecase law to date.

As discussed above, the Department of the Interior has consistently maintained that someconstruction must have taken place, although at times the Department has construed "construction"broadly, as in the 1988 Policy.

SUWA v. BLM recently focused again on the proper interpretation of R.S. 2477 and the earliercases. After reviewing the plain meaning of the statute's words as evidenced in various dictionaries,the federal district court for the central district of Utah upheld BLM's interpretation of "construction"and "highway" as consistent with these definitions and Congress's objective for federal land usepolicy. (189) (See aboveand Appendix I for the text of the definitions.) The counties, who also are defendant/appellants onappeal, asserted that under Utah law, "construction" could be accomplished by "continued use" andnothing more, and that this law should control. In response, the court probed the use of state cases,noted the disparity between some of the broad pronouncements and the actual facts involved in thecases, and summarized many recent opinions that cited them. This summary shows why theapplicability of state law cases continues to be controversial, with arguments to be made on bothsides:

... While past interpretations by state courts are notbinding on a federal court interpreting a federal statute, several federal courts have looked to thisstate interpretation for guidance. In Sierra Club v. Hodel , 675 F. Supp. 594 (D. Utah 1987), thecourt ruled that under R.S. 2477, a right of way could be established by public use under termsprovided by State law." Id. at 604 . Since the Hodel decision in 1987, several federal district courtshave adopted this state law "continued use" standard in the determination of R.S. 2477 claims. SeeBarker v. Board of County Comm'rs of the County of La Plata, Colo. , 49 F. Supp. 2d 1203, 1214 (D.Colo. 1999) (citing Hodel); United States v. Jenks , 804 F. Supp. 232,235 (D. N.M. 1992) (citingHodel), aff'd in part, rev'd in part on other grounds, 22 F. 3d 1513 (10th Cir. 1994); Adams v. UnitedStates , 687 F. Supp. 1479, 1490 (D. Nev. 1988) (citing Hodel); see also Shultz v. United States Dept.of Army , 10 F. 3d 649, 655 (9th Cir. 1993) (citing Hodel), withdrawn and superseded on rehearing,96 F. 3d 1222 (9th Cir. 1996).

The cases adopting the "continued use" standard,however, are distinguishable from the present matter. The more recent cases to adopt this standardreached that interpretation simply by citing back to Hodel, rather than through independent analysisof the competing interpretations of the word "construction." The Hodel case itself also seems tohave reached its decision by citing to previous cases, rather than by analyzing the statutory meaningof the term "construction." In ruling that state law would govern the establishment of R.S. 2477rights-of-way, Hodel cited to two cases: Wilkenson v. United States Dept. of Interior , 634 F. Supp.1265, 1272 (D. Colo. 1986), and United States v. 9,947.71 Acres of Land , 220 F. Supp. 328, 335 (D.Nev. 1963). The Wilkenson case looked to state law for the establishment of R.S. 2477rights-of-way only because the parties to that case agreed to do so. See Wilkenson, 634 F. Supp. At1272. And the 9,947.71 Acres case appears to have been miscited .... The issue of whether "physicalwork" or "continued use" was required to perfect an R.S. 2477 right-of-way was not before and wasnever discussed by the court. Nevertheless, the language used by the court clearly indicates its viewthat physical work was required to perfect an R.S. 2477 right-of-way. In referring to the road at issuein that case, the court mentioned that the road had been "built" and "laid out" through a meanderingmountain pass and that "acts of the actual construction" had been necessary to create the road.... (190)

... Further, Plaintiffs are correct that the Tenth Circuit'sdecision in Hodel did not resolve the issue of what interpretation should be given to the word"construction" in R.S. 2477. The Tenth Circuit's decision in Hodel addressed only the scope of R.S.2477 rights-of-way already found to have been established -- it did not address the issue in this case,how R.S. 2477 rights-of-way are established in the first place .... (191)

The appeal of this case was dismissed by the 10th Circuit for lack of jurisdiction since thelower court had not yet ruled on requests for injunctive relief and damages, (192) so additionalclarification on the issue of the role of state law in establishing R.S. 2477 rights of way is not yetavailable.

Scope of Rights of Way. A complete analysisof the scope of R.S. 2477 rights of way is beyond the scope of this report, but some background onthis issue may be helpful. The 1866 Act is silent as to the extent and features of a right of way, andthe regulations of the Department did not elaborate on the scope of R.S. 2477 grants. Although therehave been few federal cases to date, in the Hodel case involving the Burr Trail, the 10th Circuit heldthat the scope of a valid R.S. 2477 right of way generally is to be determined by the laws of the statein which the right of way is located, as they existed in 1976. (193) Under this rule,analysis of the scope of a particular right of way will vary depending both on the facts of each caseand the laws of the state in which the right of way is located. The Hodel case addressed only the partof the road in question that was adjacent to Wilderness Study Areas (WSAs). The court discussedthe relationship of the permissible scope of the right of way under Utah law to the managementduties of BLM in that context.

Applying Utah law, the district court in Hodel found that a valid R.S. 2477 right of wayincludes the potential to expand the right of way to a width that is "reasonable and necessary" for thetype of use to which the road had been put. (194) The 10th Circuit affirmed on this point, adding that reasonableand necessary must be read in light of traditional uses to which the right of way was put. Furthermore, the court felt that the basic principles of law governing easements would controlabuses, in that owners of the dominant and servient estates must exercise their rights so as notunreasonably to interfere with each other. (195)

Although the appeals court stated that state law controlled and that state law held an easementwas limited to the original use for which it was acquired, the court next stated that the county's rightof way was not limited to the use to which it was first put, because R.S. 2477 was an open-ended andself-executing grant under which new uses automatically vested. The court apparently meant thatall the particular highway uses that developed over the years before repeal in 1976 would assist indetermining the reasonable and necessary scope of valid expansion. (196) The court noted thatthe district court had found expanding the road to promote economic development was within thehistoric uses of the road as a "vital link between the country's major centers of activity". (197) The district court haddirected the county to apply to BLM for a right of way permit for a part of the road segment thatneeded to be relocated from its historic location. The appeals court agreed, but added that the BLMcould not deny the permit or impose all the conditions it usually could impose on rights of waygranted under Title V of FLPMA, but that BLM could specify where the road should be relocatedin order to have the least degrading impact on the WSA. (198)

The court had perceived a conflict between the saving provisions of FLPMA that preservedthe valid R.S. 2477 right of way, and the duty imposed on BLM in Â§603(c) to manage WSAs toavoid impairing their wilderness values and to avoid unnecessary and undue degradation. Congresshad specified in Â§603 that certain other uses were to be allowed to continue in WSAs, but did notspeak to valid existing roadways. BLM had analogized valid existing highways to othergrandfathered uses and afforded them the same protections, an interpretation the court foundreasonable.

It is interesting to note that the courts in the Hodel cases derived the authority of the federalgovernment to have any control over the scope and exercise of the R.S. 2477 right from the duty ofBLM to prevent unnecessary and undue degradation of the WSAs under their management. Underthe general management section of FLPMA, 43 U.S.C. 1732(b), BLM has a similar duty to preventundue degradation of all the lands under its management. In other words, the federal governmentis no longer in the pre-FLPMA position of having no interest in or responsibilities for the underlyinglands impacted by R.S. 2477 highways.

Another Utah case further elaborated on the relative interests of the United States and thosewith the R.S. 2477 easement interest. In United States v. Garfield County , (199) Garfield County hadbulldozed part of the Burr Trail that traverses Capitol Reef National Park, for which actions theUnited States sought damages in trespass. The court, relying on the Hodel cases, determined thatthe scope of the R.S. 2477 right of way is that which is reasonable and necessary to ensure safe travelfor the uses made of the right of way at the time of repeal of R.S. 2477, including improving the roadto two lanes so travelers could pass each other. (200) The court rejected the County's assertion that the width of theright of way included all "disturbed area," finding that standard to be "the most singularly unhelpful,uncertain and ungovernable approach to answering the question of scope." (201) The issue of the extentto which the County could "improve" the road led to an exploration of the respective authorities ofthe two parties. The County asserted that it could improve the road without permission from theNational Park Service, but the National Park Service pointed to its statutory authorities to protect thefederal lands underlying and surrounding the right of way and to "conserve the scenery and thenatural and historic objects and wildlife therein." (202) The court responded that: "[a]t the intersection of power,right, and duty, then, the law comprehends that one entity may not act upon its rights without regardfor the other. Each must acknowledge the need for reasonable accommodation of the other's duties,powers and purposes." (203) "Hodel instructs that 'the initial determination of whether theactivity falls within an established right of way is to be made by' the federal land management agencyhaving authority over the lands in question." (204) The court held that Garfield County could conductmaintenance work without prior authorization from the National Park Service, but could not performwork constituting "construction" within the meaning of the NPS regulations without first obtaininga permit, approval or agreement from the National Park Service, which could regulate thatconstruction work to the extent provided by regulation and statute. (205)

Undoubtedly there will be other disputes as to the scope of R.S. 2477 rights of way and therespective authorities to regulate their improvement and use, and it remains for future agency andjudicial exposition to flesh out these issues further.

Is R.S. 2477 Retrospective or Prospective? Thecourt in United States v. Dunn held that the 1866 Act was meant only to sanction trespasses that hadoccurred on the public domain before its enactment. The court said that the Act was "not intendedto grant rights, but instead to give legitimacy to an existing status otherwise indefinable." (206) The court reached thisresult by relying on two previous cases, both of which addressed those aspects of the 1866 Act thatcured past trespasses, because those were the facts before the court. A better reading of both casesis that the 1866 Act served to legitimize past trespasses and to establish priorities of occupancy rightsthat related back to the establishment of the uses rather than only to the 1866 date of enactment. (207) Neither case held thatthe 1866 Act only addressed past trespasses, and the best reading of these two cases and of themajority of judicial interpretation indicates that the act also was prospective in its application.

The 9th Circuit noted the issue as an open question in a 1982 opinion in Humboldt Countyv. United States . (208) However, two years later, the same Circuit noted that the parties to new litigation agreed that R.S.2477 operated prospectively to grant rights of way for highways constructed after its enactment. Thecourt then stated: " Dunn is questionable authority because it is contrary to the cases cited in Humboldt County , 684 F.2d at 1282 n. 6, and appears to misread Central Pacific Railway Co. v.Alameda County , 284 U.S. 463, 52 S. Ct. 225, 76 L. Ed. 402 (1932)." (209)

Therefore, the better interpretation would seem to be that while the 1866 Act confirmedpreexisting rights of way, it also applied prospectively.

Does R.S. 2477 Apply Only to Roads for Mining or HomesteadingPurposes? The Ninth Circuit also has held that an alternative ground for findingthat Humboldt County did not acquire a right of way under R.S. 2477, is that a right of way couldnot be acquired under that Act for a road for purposes other than mining or homesteading, whichpurposes did not include the desired purpose of reaching a recreation area. The court found thatalthough the language of the grant is without limitation as to purpose, the statute of which it was apart addressed solely mining and homesteading claims. The court noted that the holding in Wilderness Society v. Morton (210) was consistent with this interpretation in that the road in thatcase would facilitate oil drilling, which was completely consonant with Congress' intent in 1866 tofacilitate private mineral development. (211)

Although the argument can be made that section 8 is limited to the context of the act of whichit is a part, the language is not so limited on its face, and the provision seems consistently to havebeen interpreted as being of general import. The meaning of "highway" as a significant road set forthearlier in this report also refutes the narrow interpretation. Furthermore, when the provision wascodified, it was not placed with the remainder of the sections pertaining to mineral claims, but ratherwas codified as part of the general rights of way provisions as 43 U.S.C. Â§932. Although unenactedtitles of the United States Code are only evidence of the law and cannot change the law, (212) this Code placementis further evidence that the provision should be interpreted as of general import.

The Department of the Interior also has interpreted the provision as applicable to other thanmining access. A 1959 Solicitor's Opinion on access to mining claims states that Congressunderstood when it enacted the mining laws that miners would have to use the public lands for roads,and that roads were necessary and complementary to mining activities. The opinion does notmention section 8 of the 1866 Mining Act (R.S. 2477) as relevant to the discussion of mining roads,a fact that argues for the interpretation that the highway grant in section 8 was speaking of roadsother than mere mining access roads. (213) It also appears that the vast majority of cases have implicitlyfound the highway right of way is not limited to the mining and homesteading context. (214) United States v.9,947.71 Acres of Land (215) held that private entities were entitled to compensation fromthe United States for the taking of their mine access right of way. Although the court had discussedR.S. 2477 as one authority for the mine road, the court also concluded that the right of way was nota public highway, and the case does not stand for any clear characterization of R.S. 2477.

What Are Unreserved Lands? The 1866 grantwas for rights of way across public lands that were not then reserved. Public lands are those landsin the public domain -- basically the western lands the United States obtained from another sovereignrather than from a state or individual -- that were open to the operation of the various public landlaws enacted by Congress, such as the homesteading acts. Reserved lands are those public lands thatare withdrawn and dedicated to a particular federal purpose or purposes, such as military reservationsor national parks.

The position of the Department in the 1988 policy statement was that public lands that arenot available for R.S. 2477 rights of way are those that are reserved or dedicated by Act of Congress,Executive Order, Secretarial Order, or, in some cases, classification actions authorized by statute,during the existence of that reservation or dedication, or lands pre-empted or entered by settlersunder the public land laws or located under the mining laws which ceased to be public lands duringthe pendency of the entry or claim. (216) Usually, it is clear whether a full-fledged reservation hasoccurred. The situation may not be as clear, however, when classifications and withdrawals areinvolved.

For example, the withdrawals and classifications associated with the creation of grazingdistricts under the 1934 Taylor Grazing Act (217) may reserve lands sufficiently to preclude establishment of anR.S. 2477 right of way. The Taylor Grazing Act at 43 U.S.C. Â§315f provides that affected lands"shall not be subject to disposition, settlement, or occupation until after the same have beenclassified and opened to entry." Yet 43 U.S.C. Â§315e states that "nothing contained in this chaptershall restrict the acquisition, granting or use of ... rights -of-way within grazing districts underexisting law ...." The 9th Circuit has held that the two sections should be read together, such thatwithdrawals and creation of a grazing district precluded establishment of a road across grazingdistrict lands, unless the entity seeking to acquire a right of way sought the reopening of such landsunder 43 U.S.C. Â§315f in order to establish the road. (218) If this reasoning is repeated in other cases, it obviously wouldhave a great impact on the remaining R.S. 2477 validity determinations since the Taylor Grazing Actwithdrawals were extensive.

Estoppel. An issue that underlies much of thecontroversy surrounding R.S. 2477, especially with reference to construction issues, is that of federal"acquiescence" in whatever interpretations the states devised. The argument can be made thatbecause the agency administering the Act allegedly did not assert any federal requirements or disputestate claims for a period of over a hundred years, and because Congress also acquiesced in statearticulation of all aspects of these grants, the federal government may not now assert statutoryrequirements that contradict state claims or interpretations. Therefore, the argument continues, thevalid existing rights that were preserved by FLPMA are those and only those that are recognized asvalid under state law.

This issue of estoppel by acquiescence was discussed in United States v. California , a caseinvolving disputed ownership and jurisdiction over the three-mile belt of submerged lands off thecoast of California. The Court ruled for the United States (a position Congress later changed bystatute), despite a long history of acquiescence by federal officials in the assertion of jurisdiction bythe State, even to the point of making federal purchases of rights in the belt. The Court said:

As a matter of fact, the record plainly demonstrates thatuntil the California oil issue began to be pressed in the thirties, neither the states nor the Governmenthad reason to focus attention on the question of which of them owned or had paramount rights in orpower over the three-mile belt. And even assuming that Government agencies have been negligentin failing to recognize or assert the claims of the Government at an earlier date, the great interestsof the government in this ocean area are not to be forfeited as a result. The Government, whichholds its interests here as elsewhere in trust for all the people, is not to be deprived of those interestsby the ordinary court rules designed particularly for private disputes over individually owned piecesof property: and officers who have no authority at all to dispose of Government property cannot bytheir conduct cause the Government to lose its valuable rights by their acquiescence, laches, orfailure to act. (219)

The analogy with the current situation appears clear. The federal government had no reasonto focus on validity of R.S. 2477 rights of way until after the repeal of the measure, and possibly notuntil the issuance of the 1988 Policy Statement, which perhaps encouraged claims that hadpreviously not been considered to be valid. Quite arguably, the actions of the federal agents werenot as compromising in the R.S. 2477 context as they were in the California context because theregulation of the Department did incorporate the elements of the relevant statute, and because of thehistorical context surrounding rights of way before FLPMA.

In Utah Power & Light Co. v. United States , involving another right of way statute and acombination of acquiescence and overt actions on the part of federal agents, the Supreme Court alsoheld:

This ground also must fail. As a general rule laches orneglect of duty on the part of officers of the Government is no defense to a suit by it to enforce apublic right or protect a public interest .... A suit by the United States to enforce and maintain itspolicy respecting lands which it holds in trust for all the people stands upon a different plane in thisand some other respects from the ordinary private suit to regain the title to real property or to removea cloud from it. (220)

An "estoppel" argument also was raised in City and County of Denver v. Bergland , involvinganother right of way statute. The court quoted from U.S. v. California, supra. , with approval, andstated that estoppel, if applicable at all, can lie only against an agency to which Congress hasdelegated the authority to dispose of lands held in trust for the public. (221) The court did notdecide whether some version of estoppel could apply to the agencies regarding the right of wayinvolved in that case, because it concluded that plaintiff had failed to make a traditional case ofestoppel against the United States for reasons that may well also pertain in the current R.S. 2477context. (222) Evenif the elements of estoppel are present, when title to public lands is involved, policy considerationsdemand that estoppel not be applied without compelling reasons. (223)

An argument can be made that estoppel is not appropriate in the R.S. 2477 situation, becausethe elements required by the 1866 Act are evident on the face of the Act and have consistently beenrequired by the Department since its earliest regulation.

Clearly, there is a legitimate and significant role for state law to play in implementing thestatute, but it can hardly be assumed that Congress agreed with diverse state interpretations of whichit was not aware and regarding which it had no reason to inquire. Furthermore, Congress has actedto address rights of way in legislation since 1866 in enactments that are consistent with an intent inthe 1866 Act to grant rights of way for the construction of significant roads, and therefore it couldbe argued that Congress did not necessarily acquiesce in apparently contrary state interpretations.

A reconsideration of the 1988 Policy and the criteria set out in it, the argument mightcontinue, that resulted in a new articulation closer to the requirements of the Act would not actuallybe disruptive of the current status quo because most of the qualifying roads clearly qualified by 1976. Furthermore, an examination of some of the leading state cases indicates that an interpretation thatrequired qualifying roads to be public highways under state law and also to meet the elements of thefederal grant would not be at odds with most of the actual rules and facts of those cases.

Statute of Limitations. Except for certain suitsby states, the Quiet Title Act bars suits that are brought more than 12 years after the plaintiff knewor should have known that the United States asserted title in a particular property contrary to theirown. (224) Theprevious disclaimer regulations had a blanket statute of limitations of 12 years. The amendedregulations parallel the QTA by providing a new exception for state claims, but also put in place anew definition of "state" that, in contrast to the interpretation of that term under the QTA and to theabsence of any exception to the 12-year statute of limitations in the previous disclaimer regulations,includes counties and other political subdivisions of states, and other governmental entities, therebybroadening those not time-barred from seeking a disclaimer. Court cases have analyzed whether thestatute of limitations in the QTA context may have run with respect to R.S. 2477 claims, and mayshed light on statute of limitations issues in the disclaimer context.

After Congress repealed R.S. 2477 in its entirety in 1976, no new R.S. 2477 rights of waycould be established, and several administrative actions taken after the repeal of the grant in 1976may have begun the 12-year period. After repeal, BLM notified the states that R.S. 2477 was nolonger effective and that all new claims would be under Title V of FLPMA. (225) In 1980, BLMproposed regulations for Title V rights of way, and included a request for all persons, state or localgovernments that had "constructed public highways" under the authority of R.S. 2477 to file mapsshowing the locations of the highways. However, doing so was optional. (226)

As part of its implementation of section 603 of FLPMA, BLM also developed proposedcriteria for determining which lands were "roadless". These criteria were finalized after publicreview and numerous public meetings. The Wilderness Policy and Review Procedures were issuedin draft form on February 27, 1978. More than 60 meetings were held and over 5,000 letters andwritten comments were received, most of which focused on the proposed definition of "road" thatwould be used in the inventory. (227) A wilderness inventory handbook was issued on September27, 1978. (228) BLMthen completed two levels of inventories that were completed by December, 1980.

By the end of 1980, lists of areas determined to be roadless that were classified as"Wilderness Study Areas" (to be studied further for suitability for inclusion in the NationalWilderness Preservation System) were published in the Federal Register and the BLM directors ineach state issued press releases on the classifications and designated areas. The names and addressesof each BLM State Director were given in the Notices, which also stated that inventory maps anddetailed information were available to the public. (229)

Arguably, this sequence of actions, especially the opportunity for public comment on theproposed wilderness inventory procedures and in particular the definition of "road" that generatedsuch response, the public notice of the final Wilderness Handbook, the BLM inventories of roadlessareas, and the subsequent published determinations of which areas were deemed to be without roads may have constituted notice of a position of the United States adverse to possible claimed R.S. 2477rights in those areas so classified.

If these actions of BLM are found to have put possible claimants on notice that they shouldassert R.S. 2477 claims, the statute of limitations may have run such that some claimants may notbe able to contest an adverse determination now under the QTA. However, courts may requireadditional acts in order to find that a plaintiff "knew or should have known" that the United Statesclaimed title in conflict with a non-federal right of way. (230)

The argument can also be made that if R.S. 2477 "highways" are interpreted as includingminor ways that were not even roads for purposes of section 603 of FLPMA, then the classificationof areas as roadless still did not suffice as notice of a position of the United States hostile to theinterest of possible R.S. 2477 claimants, such that the clock on the statute of limitations began to run. Absent Congressional action, this, like many other R.S. 2477 issues appears likely to be settled bythe courts.

Current Congressional Actions

H.R. 1639 in the 108th Congress would establish a window of time to presentR.S. 2477 claims, beyond which time such claims would be deemed to have been abandoned, (231) and would establishuniform definitions and a procedure for validating such claims.

The bill would define "construction" and "highway" as:

[A]n intentional physical act or series of intentionalphysical acts that were intended to prepare, and that accomplished preparation of a highway by adurable, observable, physical modification of the land along the entire claimed route to facilitate thesafe and efficient passage of four-wheeled highway vehicles.

A thoroughfare along a specific identified route that,prior to the latest available date, was used by the public, without discrimination against anyindividual or group, for the passage of four-wheeled highway vehicles carrying people or goods fromone inhabited place to another inhabited place.

The House approved an amendment to FY2004 Interior and Related Agencies Appropriations( H.R. 2691 ) that would have prohibited implementation of the disclaimer regulationamendments in national monuments, wilderness and wilderness study areas, National Parks, andNational Wildlife Refuges. The Senate bill did not contain a similar provision and it was eliminatedin conference.

Appendix 1

Comparison of Various Definitions Relating to R.S.2477